2008 P Cr (PLP)

MUHAMMAD ZAFAR YASIN, J.

Through this jail criminal appeal Muhammad Ishaq alias Langhra Pir has challenged his conviction and sentence recorded by Additional Sessions Judge, Lahore, dated 19-2-2007 whereby the appellant has 'been convicted under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to ten years' R.I. with benefit of section 382-B, Cr.P.C.

2. The conviction and sentence has been recorded in case F.I.R. No.358 dated 3-7-2004 registered at the instance of Mehnga P.W.2, father of the victim Mst. Zahida Bibi, regarding occurrence dated 26-6-2004 under section 380, P.P.C. and sections 10 and 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

3. According to the complaint Exh.P.D., complainant Mehnga, resides at Haji Kot Kala Khatai Road within the jurisdiction of Police Station Shandara Town, Lahore and that he had gone to Narowal in connection with consolidation of his land, Muhammad Ishaque alias Langra Pir was residing in the house of Mst. Nooran Bibi co-accused for the last 2/3 months; and was also participating in distributing of alms at the house of complainant during this period and thus, Mst. Nooran Bibi and Ishaq had visiting terms with me. In absence of my wife Mst. Rani, Mst. Nooran Bibi and Sughran Bibi enticed away Mst. Zahida Bibi 15 years daughter of the complainant along with co-accused Muhammad Ishaque and Ramzan alias Jana abducted Mst. Zahida Bibi at a car and drove towards Narang Mandi who were witnessed by Nazar Shah and Shahid Ali. They had also taken away of Rs.30,000 cash and gold ornaments worth of Rs.10,000 with them. It was also stated that Mst. Azra and Zahida Bibi were abducted with an intention to commit Zina with them.

4. The case was investigated, initially there were four accused persons named in the F.I.R. and Mst. Azra was shown as one of the abductee but during the investigation she was also made as an accused person by the prosecution, as she had enticed away Mst. Zahida Bibi, the daughter of the complainant. During investigation accused/appellant Muhammad Ishaque alias Langra Pir along with other were arrested on 1-9-2004 and Mst. Zahida Bibi was also recovered. The statement under section 164, Cr.P.C. of abductee Mst. Zahida Bibi was got recorded with the Magistrate P.W.8 and also she was got medically examined for determination whether she was subjected to Zina. After completion of the investigation the challan was put up in the Court for trial against five accused namely Muhammad Ishaque alias Langra Pir, Muhammad Ramzan alias Jana, Mst. Azra Bibi, Mst. Nooran Bibi, Mst. Sughran Bibi. All the accused were charge-sheeted for commission of offence punishable under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and for committing an offence punishable under section 380, P.P.C., Muhammad Ishaq was additionally charged for committing an offence under section 10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, by the trial Court, which they denied and claimed trial.

5. To prove its case the prosecution produced as many as 10 witnesses and also tendered in evidence the medico-legal report Exh.P.A. of Mst. Zahida Bibi, report of Chemical Examiner Exh.P.R., report of Serologist Exh. P. S. and statement of Mst. Zahida Bibi recorded under section 164, Cr.P.C. and statement of Mst. Azra recorded under section 164, Cr.P.C., after closing the evidence of the prosecution the statement of the accused were recorded under section 342, Cr.P.C. Accused/appellant Muhammad Ishaque alias Langra Pir took the plea that Mst. Zahida Bibi being unmarried sui juris with her free will accompanied him and further contracted marriage with him with her free will on 28-6-2004, and has been living with him as his wife. He also produced Exh.D.A., a complaint filed by her against her father Mehnga and others under sections 452, 506, 148, 149, P.P.C. 5-7-2004 wherein she had admitted her Nikah with Muhammad Ishaque alias Langra Pir and also produced copy of her statement allegedly recorded by the Magistrate as preliminary evidence in the said complaint, on 5-7-2004 as Exh.D.A. The accused also produced copy of Nikahnama dated 28-6-2004 Exh.D.C. to show his Nikah with Mst. Zahida Bibi. The Court summoned Bilal Ahmad Nikah Registrar/Secretary, Union Council as C.W. who, on the basis of record stated that there is no entry of Nikahnama of the accused Ishaq with Mst. Zahida Bibi in Marriage Register with him.

6. On the basis of the evidence on the record, the trial Court has been pleased to acquit all the accused of charge of offence under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and further acquitted all of them of commission of offence under section 380, P.P.C. However, the trial Court has been pleased to convict Muhammad Ishaq alias Langra Pir under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him as noted above. Hence this appeal.

7. Learned counsel for the appellant has argued, that there is a valid Nikahnama of the appellant with Mst. Zahida Bibi, hence his conviction under section 10(3) of the said Ordinance is not maintainable under the law. Further argued that she had not only admitted her Nikah with the appellant before the Magistrate in statement as preliminary evidence was recorded on 5-7-2004, but also admitted in her complaint Exh.D.A. that she is legally-wedded wife of the appellant and has been living with him as such. Hence conviction and sentence of the appellant is not sustainable. Further argued that the prosecution has failed to prove that the appellant has committed offence of Zina-bil-Jabr, as the alleged victim remained with the appellant, for more than two months i.e. 26-6-2004 to 1-9-2004 when she was allegedly, accompanied her father. Thus, conviction under section 10(3) of the said Ordinance is not maintainable.

8. On the other hand learned D.P.-G. Punjab has argued that Mst. Zahid Bibi was admittedly an unmarried girl. She has been subjected to Zina-bil-Jabr by the appellant as per statement of Mst. Zahida Bibi made under section 164, Cr.P.C. which has been duly proved by the Magistrate P.W.8 who had recorded the same and exhibited while the appellant, despite opportunity did not cross-examine. Further argued though medico-legal report of victim Mst. Zahida Bibi coupled with the Chemical Examiner's report, it is evident that she had been subjected to sexual intercourse. Hence the conviction and sentence of the appellant recorded by the trial Court is in accordance with law.

9. Heard. Record perused.

10. The admitted facts are Mst. Zahida Bibi aged about 17/18 years remained with appellant Muhammad Ishaq alias Langra Pir from 26-6-2004 till 30-8-2004. During this period the appellant as per his own statement under section 342, Cr.P.C. she had been performing matrimonial obligations, thus, she had been subjected to sexual intercourse. The medico-legal report of the victim as well as report of the Chemical Examiner also corroborates this fact, therefore, the only point which needs serious consideration is whether there was a valid .marriage of Mst. Zahida Bibi with appellant Muhammad Ishaq alias Langra Pir since 28-6-2004. Admittedly the appellant neither produced any witness of his marriage with Mst. Zahida Bibi nor Nikahkhawan to prove that marriage had been solemnized in accordance with law. Hence mere production of alleged Nikahnama Exh.D.C. without its formal proof is of no value. Further C.W. has proved that it was not registered.

11. As regards Exh.D.A., the copy of the complaint allegedly lodged by Mst. Zahida Bibi against her father Mehnga dated 5-7-2004 and her alleged statement recorded by the Magistrate on 5-7-2004 in preliminary evidence of the complainant, admittedly these documents were not put to Mst. Zahida when she appeared as P.W.7, nor these documents were shown to her at that time to confront her; while she categorically had denied the fact of having entered into marriage with Muhammad Ishaq alias Langra Pir.

12. It is well-established law that where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party, unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admission. Without complying with the procedure laid down in section 145, of Evidence Act, the admission contained in the previous statement cannot be used as legal evidence against that party. In this respect reliance is placed on a judgment reported as Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730.

13. Section 145 of the Evidence Act has been substituted verbatim with Article 140 of the Qanun-e-Shahadat Order, 1980. Admittedly Exh.D.A. and Exh.D.B. were neither produced in the Court while examining Mst. Zahida Bibi P.W.7 nor she was confronted with her previous statement. Hence these documents cannot be read with in evidence being inadmissible in law, while Exh.D.C. the alleged Nikah of appellant with Mst. Zahida Bibi has not been proved. Therefore, the logical conclusion is that the appellant had been committing Zina with Mst. Zahida Bibi from 28-6-2004 till 30-8-2004. The only point needs further consideration is whether the appellant has committed offence under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 having been committed Zina-bil-Jabr with Mst. Zahida Parveen or he has committed offence punishable under section 10(2) of the said Ordinance, having committed Zina with her consent.

14. The appellant along with his co-accused have been acquitted of the charge under section 11 of the said Ordinance. Against acquittal of the appellant and his co-accused from charge under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 no appeal has been filed by the State or the complainant. Hence it is evident that the alleged victim had accompanied the appellant with her free consent. Furthermore, she had been living with the appellant for a period of more than two months at different places, where she had been subjected to Zina, neither she raised any resistance nor hue and cry. Even the medico-legal report of Mst. Zahida Bibi, clearly shows that there was no marks of violence on any part of her body or on her private part, while she was used to sexual intercourse. Thus, there is no corroborative evidence except the solitary statement of the victim that she had been subjected to Zina-bil-Jabr. Furthermore, the appellant is handicapped person as noted by the learned trial Court, as well as by Dr. Muhammad Iqbal C.M.O., P.W.3, therefore, he was physically also incapacitated to commit Zina-bil-Jabr.

15. In view of the facts and circumstances of the case noted as above one comes to an irresistible conclusion that Mst. Zahida Bibi being a sui juris, has been living with appellant for more than two months and had been enjoying the sex with him with her free consent.

16. In view of what has been discussed above, the conviction and sentence of the appellant Muhammad Ishaq alias Langra Pir recorded under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the trial Court is hereby converted into one under section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and he is hereby sentenced to three years' R.I. with fine of Rs.10,000 in default whereof to further undergo S.I. for three months with benefit of section 382-B, Cr.P.C., which has already been granted by the trial Court.

17. With this modification in the conviction and sentence the appeal is disposed of. H.B.T./15/FSC Order accordingly.