2005 P Cr (PLP)

9. Learned counsel for the parties have been heard at length and Mushtaq Ahmad, complainant being present was also given hearing.

10. Learned counsel for the appellant vehemently states that Mushtaq Ahmad complainant is a man of bad character and he in connivance with his wife implicates people in false cases for extorting money and there is enough evidence on record to this effect. This is totally denied by the complainant.

11. We have gone through the evidence on record and find that the story put forth by the abductee is wholly incredible and cannot be relied upon. It is proved on the record that the complainant is of dubious character and all the accused have been falsely involved in this case.

12. The trial Court has unequivocally' held in the impugned judgment that no case of Zina is made out, therefore, all the accused have been acquitted from the charge under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance. In this view of the matter there was no justification for the trial Court to have believed the story of the abductee that she was taken to various places.

13. The alleged abductee is the mother of five children and she was allegedly taken to various places by all the accused which is wholly unbelievable in the facts and circumstances of the case.

14. The appellant has been convicted under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance which contemplates taking or enticing away any woman with intent that she may have illicit intercourse with any person, or, conceals or detains with that intent any woman. There is not an iota of evidence to hold that anyone of the accused have committed any intercourse or they were willing to do so. It is amply demonstrated that the lady was neither taken away nor enticed for the purpose for which the appellant has been punished.

15. According to the statement of the abductee and her husband all the accused were equally responsible for her enticement and also for committing Zina‑bil‑Jabr. The present appellant Bashir Ahmed has been convicted and sentenced under section 16 of the said Ordinance for four years' R.I. with a fine of Rs.20,000 while Muhammad Anwar and Abdul Ghafoor accused have been sentenced to there months' R.I. for facilitating the commission of offence in favour of Bashir Ahmad co -accused.

16. The learned trial Court has failed to apply its mind as to how these accused were interested to facilitate the commission of the offence.

17. Rehmat Ali arid Maqsood Ahmad have been acquitted of the charges by giving them the benefit of doubt.

18. After reading the entire judgment we are of the view that it suffers from major contradictions and there was no basis to convict the accused persons.

19. Rehmat Ali aged about 68/85 years is the brother of Bashir Ahmed the owner of Ihata where the complainant and his family were accommodated by the owner on sympathetic grounds but they hit back their own benefactor.

20. Mushtaq Ahmad, the present complainant also recorded a similar F.I.R. No.76, dated 5‑7‑2001, Police Station Sarai Muhajir, under sections 10/16 of Offence of Zina (Enforcement of Hudood) Ordinance against Muhammad Akram and five others who by judgment dated 21‑11‑2002 of the Additional Sessions Judge, Bhakkar were acquitted. There is yet another F.I.R. No.26, dated 30‑5‑2002, Police Station Sarai Muhajir under section 377, P.P.C. where Mushtaq Ahmad was the complainant. Both the husband and wife concealed the facts of the IG aforementioned cases. In cross‑examination Mushtaq Ahmad, complainant as P.W.12 stated that he did not lodge Criminal Case No.76, dated 5‑7‑2001 under sections 10/16 of Offence of Zina (Enforcement of Hudood) Ordinance against Muhammad Akram and others. He further denied having appeared in the aforementioned case.

21. The judgment passed on 21‑11‑2002 in case F.I.R. No.76 dated 5‑7‑2001 is on the record which shows that the complainant is a liar of the highest order. On the other hand in cross‑examination the abductee as P. W.14 stated that "Kamran is my son and I do not know that my husband got registered a case of sodomy against Tanvir against my son Kamran". She expressed ignorance if the accused in that case was discharged from the case. However, she deposed that "My husband sot registered a case F.I.R No. 76 dated 5‑7‑2001 against Akram and other accused". This shows the falsity of the complainant Mushtaq Ahmad who denied lodging of the F.I.R. No.76 under sections 10/16 of the said Ordinance.

22. When a criminal case is decided it carries with its punishment and it is the duty of the trial Court to be extra vigilant and see to it that no injustice is done to the accused for lack of proper examination of the evidence. If the trial Court applied its mind to the most essential facts of the case there was no occasion for any conviction and subsequent litigation on the part of the accused persons to get themselves free.

23. In view of the evidence on record it is proved beyond any shadow of doubt that the complainant in connivance with his wife was involving innocent people in criminal cases and more particularly in the present F.I.R. when the appellant Bashir Ahmad is the owner of Ihata and Rehmat Ali aged 85 years is his brother. There was no evidence with the trial Court to convict also other accused when they had not participated in the crime. Even the trial Court has held that no case of Zina was made out. Then no conviction under section 16 of the said Ordinance could be possible.

24. Mst. Kalsoom Akhtar filed Writ Petition No.8783 of 2002 against Superintendent of Police, Bhakkar, S.H.O. Police Station Sarai Muhajir, Malik Bashir Ahmad, A.S.‑I. Police Station, Sarai Muhajir and Mushtaq Ahmad, her husband. In this writ petition the petitioner (abductee) alleged that she was married to the complainant 15 years ago and has four children from this marriage and that her husband is drug addict and has been treating her cruelty arid has thrown her out from the house and consequently she .has filed a suit for dissolution of marriage. The lady claimed a direction against the police against her harassment which was being caused at the instance of her husband to withdraw the suit.

25. The learned High Court disposed of the writ petition on 24‑5‑2002 with necessary direction that `if what the petitioner states is correct, respondents Nos.2 and 3 are directed not to interfere in the personal life of the petitioner and not ‑to impede her from pursuing any legal proceedings that she has initiated and also not to harass her and her family members, if they are not required in any criminal case".

26. It is stated by the complainant that the suit for dissolution of marriage had been withdrawn.

27. P.W.6 is Majeed Ullah, S.‑I. Investigating Officer and in cross -examination he admits having not conducted any investigation or inquiry about the innocence or guilt of Muhammad Anwar, Maqsood Ahmad and Abdul Ghafoor. In spite of this the appellant and his brother along with others suffered great harassment and agony of the trial.

28. The alleged occurrence of enticing away took place on 8‑2‑2002 and the present F.I.R. was registered on 22‑9‑2002 after a lapse of about seven months and there is no reasonable explanation for the delay. This also goes to show that there was no substance in the F. I. R. and the entire case against the accused was fabricated.

29. We have heard the arguments at length and passed a short order, dated 7‑12‑2004 acquitting the appellant Bashir Ahmad and these are our reasoning to the aforementioned order.

30. In view of the above the impugned judgment, dated 21‑6‑2004 convicting and sentencing the appellant is set aside and the appeal accepted. He is present before us in the custody of the police and be released, if not, required in any other case. H.B.T./83/FSC Appeal accepted.