1999 PLP 2643 (SCMR)

2. The facts of the case are that Atta Muhammad, father-in-law of the victim Mgt. Hafeezan Bibi lodged F.I.R. (Exh.P.B.) at 6.45 p.m. on 7th July, 1993 alleging -therein that the appellant being his neighbour was on visiting terms to his house and had developed illicit relations with Mgt. Hafeezan Bibi, his daughter-in-law. He went on stating that on 6-7-1993 in the fore-noon, Anwar Bibi wife of Ilam Din came to his house and after some conversation with Mgt. Hafeezan Bibi, she went back and at about 6-7 p.m., Mgt. Hafeezan Bibi on the pretext of making bread went to the house of Anwar Bibi and when she did not come back for. a considerable time, her husband, namely, Dost Muhammad inquired from Anwar Bibi about his wife but she put him off. In the meanwhile Habibullah son of Malook resident of the same village told that he saw Mgt. Hafeezan Bibi and Yaqoob, appellant and Ilam Din at the bus stop boarding a bus going towards Hamoli. The son of the complainant went to Hamoli crossing where he was informed by Azizullah Khan, P.W.5 that Mgt. Hafeezan Bibi whom he recognizes, Yaqoob appellant and Rain Din got down from a bus coming from Piplan and boarded another bus towards Mianwali. The complainant and other relatives demanded the return of Mgt. Hafeezan Bibi, victim from Yaqoob/accused s father who had been putting them off, therefore, complaint was lodged that Yaqoob, appellant on account of his illicit relations, with the help of Ilam Din and Anwar Bibi, had enticed away Mgt. Hafeezan Bibi to commit Zina with her. Mgt. Hafeezan Bibi, according to the F.I.R., had been married for a long time and had given birth to four children during the wedlock with Dost Muhammad. After investigation, the appellant was tried in the Court of learned Additional Sessions Judge, Mianwali whereas the other two accused persons were placed in Column No.

2. Charge under sections 11 and 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was framed against them. The appellant and the said co-accused did not plead guilty and claimed trial.

3. The prosecution in support of this case examined nine witnesses. Muhammad Mumtaz Khan, A.S. I. who is a formal witness appeared as P. W.1 who recorded the statements. under section 161, Cr.P.C. and partly investigated the case. 'Raees Khan, A.S.I. who appeared as P.W.2 got recorded the statement of the victim i.e. Mgt. Hafeezan Bibi under section 164, Cr.P.C., by a Magistrate and got her medically examined by the lady Doctor. P.W.3 Fateh Muhammad who was Muharrar/Head Constable, Police Station Piplan recorded the formal F.I.R. and kept parcels of swabs taken by the lady Doctor in safe custody. P.W.4 Mgt. Hafeezan Bibi is the victim who in her evidence gave detailed version of her abduction and of alleged commission of , Zina-bil-Jabr with her by the appellant. P.W.5 Azizullah is a witness who saw the appellant and victim together. P.W.6 is Dr. Ejaz Ahmad Chaudhry who examined the appellant and gave opinion about his being potent to perform sexual intercourse. P.W.7 Atta Muhammad, complainant on whose statement F.I.R. (Exh.P.B.) was recorded reiterated the story of abduction of Mgt. Hafeezan Bibi and P.W.8 Muhammad Aslam, Inspector is a formal witness who after investigation submitted the challan in the Court. P.W.9, Lady Doctor Riffat Falak examined the victim on 22nd September, 1993 and submitted her medical report of the examination (Exh.P.F.) according to which the swabs taken from the vagina of the victim were stained with semen. ,

4. As regards medical evidence, the same is of no help to the prosecution, for, admittedly, Mgt. Hafeezan Bibi, the victim was a married woman, therefore, the said evidence has not a corroborative value in case the prosecution is found to have failed in producing independent evidence to establish the offence of abduction of Mgt. Hafeezan Bibi and commission of Zina-bil-Jabr with her, therefore, we would proceed to examine evidence produced by the prosecution which consists of statement of (P.W.4) Mst. Hafeezan Bibi, herself, the statement of the complainant who appeared as P.W.7 and the statement of P.W.5 Azizullah who allegedly saw Mgt. Hafeezan Bibi, victim and the appellant together. He i.e. P.W.5 in his statement disclosed that he saw a car heading towards Multan and Mgt. Hafeezan Bibi was present in it and was making hue and cry. Yaqoob, accused alongwith an old lady and driver were present in the car. Mgt. Hafeezan Bibi was seeking help by saying "Bachao, Bachao". The car was in high speed and it proceeded towards Multan whereas in the F.I.R., it was stated by the complainant, which statement was admittedly based on information given to him by Habibullah son of Malook, tha; he saw Mst. Hafeezan Bibi and Yaqoob, appellant and Ilam Din at the bus stop boarding a bus going towards Harnoli. Since it was not in the F.I.R. that Azizullah told the complainant that Mgt. Hafeezan Bibi, her daughter-in-law was making hue and cry by saying "Bachao, Bachao" and was at least not willing party to this incident, therefore, in order to make up this deficiency and for making out a case of forcible abduction, P.W.5 was made to state that he saw Mgt. Hafeezan Bibi being taken forcibly in a car who was raising hue and cry for help. This witness when suggested denied that his statement before the police made under section 161, Cr.P.C. was to the effect that Yaqoob, appellant and Mgt. Hafeezan Bibi were seen by him while traveling by a lorry bound for Mianwali. When confronted with the statement, the Court found that the same had been recorded therein as such. He claimed that he did not state before the police that Ilam Din was also present alongwith Yaqoob. When confronted with his statement under section 161, Cr.P.C., it was found to contain the said statement. He when questioned stated that in his statement before the police, he had stated that an old lady was also occupying a seat in the car alongwith Yaqoob, accused but it was not recorded in the said statement. He also stated before the Court that in his statement before the police under section 161, Cr.P.C., he stated that Mst. Hafeezan was raising a noise in the car and calling for help but the same was not found to be part of the said statement. He admitted that he is a personal servant and Karinda of Farooq Azam Khan but denied the suggestion that this case was registered at the instance of said' Farooq Azam Khan and he was cited as a witness in the case to make statement falsely and involve the appellant.

5. It may be mentioned here that Habibullah son of Malook who according to the F.I.R. told the complainant that he had seen Mst. Hafeezan Bibi, victim and the present appellant alongwith Ilam Din at the bus stop boarding a bus was not produced as witness having been given up being unnecessary. Apart from Azizullah's evidence, the only other evidence available on the record is the evidence of complainant himself and the victim. Since the complainant, as per version given in the F.I.R. is not eye-witness of any of the incidents narrated therein, therefore, his evidence is of no avail and the facts narrated therein do not find any corroboration from the evidence of Mst. Hafeezan Bibi and Azizullah, P.W.5. It can safely be held that the prosecution has failed to establish case against the appellant beyond reasonable shadow of doubt either of abduction or of Zina-bil-Jabr.

6. The evidence of Azizullah has been discussed above and it is clear from the same that it does not even remotely establish any of the facts narrated in the F.I.R. rather it has not only contradicted the facts stated in the F.I.R. in material aspects but has also established the falsehood of the statement from its bare reading. In the F.I.R., it was mentioned that in the forenoon on the day of occurrence, Mst. Anwar Bibi wife of Ilam Din came to complainant's house and after some conversation with Mst. Hafeezan Bibi, victim, went back and at about 6-7 p.m. Mst. Hafeezan Bibi on the pretext of making bread went to the house of Anwar Bibi and when she did not come back for a considerable time, the son of the complainant Dost Muhammad inquired from Anwar Bib about his wife but she put him off whereas in her evidence in the Court, she has narrated a different story viz that about three years ago, she was present in the house of her husband when at about 9.30 a.m. Muhammad Yaqoob accused present in the Court came to her and told her that her husband and her son had met an accident. According, to her, since her husband was suffering from some eye disease and the said son from fever, therefore, he (appellant) told her that they had gone to Hafizwala Rural Dispensary for treatment which statement was believed by her and she left with the appellant in a car in which an old lady was already seated and she accompanied with them to Hafizwala where her husband and son were not present on which the appellant told her that they might have shifted to Mianwali Hospital, therefore, she accompanied him and reached Hai-noli Mor from where the appellant turned her car towards Multan side. She raised hue and cry because she suspected a foul play but the appellant silenced her on a pistol point. According to her, she remained with the appellant for about one month and ten days and he used to commit rape with her. On one day, when he went outside but did not lock the door as he used to do previously, she got opportunity and started running and reached the railway station where a train arrived and she boarded the same and came to Multan from where again, she changed the train and came to Darya Khan by another train. According to her; her parents resided in Darya Khan. She, approached them who took her to the police station. After recording her statement, the police took her to Magistrate at Piplan where she got her statement recorded under section 164, Cr.P.C. She admitted in the cross-examination that she did not talk to any one about her detention in the bungalow where she was allegedly housed under lock and key and when she came out of the said house and changed two or three trains to reach her parent's house, she did not talk. to anyone else about her abduction or commission of Zin-bil-Jabr with her. According to her evidence, she appeared before the police of her own. Atta Muhammad, the father-in-law of the appellant was examined as P.W.7 and his statement is also not worthy of any credit on account of the' abovementioned deviation from the story as made out in the F.I.R. He admitted that he was 'Kami' of one Farooq. The appellant in his statement under, section 342, Cr.P:C. took specific stand that being 'Kami: of Farooq, they got the case registered against him at the asking of the said Farooq.

7. Learned counsel for the State when questioned as to how on the basis of this evidence, it could by any stretch of imagination be held that the prosecution had succeeded in bringing home guilt to the accused either of abduction of Mst Hafeezan Bibi or commission of Zina-bil-Jabr referred to only one circumstances i.e. the abscondance of the appellant. The argument has no force. If the court is satisfied that the' prosecution evidence has failed to establish case against the accused, the conduct of abscondance cannot by itself be taken as a sufficient basis to hold him guilty. (see: 1995,SCMR 1373; 1995 SCMR 1632; PLD 1980 SC 201).

8. After examining the evidence produced by the prbsecution, we are of the considered view that the same is neither reliable nor inspires confidence nor is sufficient to establish beyond reasonable shadow of doubt the case against the appellant. The witnesses of the prosecution do not appear to have spoken the truth and the plea taken by the appellant that the case had been got registered at the instance of Farooq Khan in the facts and circumstances of this case cannot altogether be ignored and there is every possibility that the same may be true.

9. For the foregoing reasons, we would accept this appeal and set aside the conviction recorded by the Court below and the sentences awarded to him and he is acquitted of the charge. Through our short order, we by majority, accepted this appeal and the above are the reasons for the same. JUSTICE WAJIHUDDIN AHMED, MEMBER.

Facts of the case need not be repeated since the same are available in the main judgment. Sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, under which the learned Additional Sessions Judge, Mianwali, and the Federal Shariat Court have convicted the appellfint, together with other relevant or cognate provisions, run as under:-- "(4) Zina A man and a woman are said to commit 'Zina' if they willfully have sexual intercoursc without being validly married to each other. Explanation.

Penetration is ,sufficient to constitute the sexual inter course necessary to the offence of Zina". "(10)Zina or Zina-bil-Jabr liable to Tazir.

(1) Subject to the provisions of section 7 whoever commits Zina or Zina-bil-Jabr which is not liable to "hadd. or for which proof in either of the forms mentioned in section 8 is not available and the punishment of qazi liable to hadd has not been awarded to the complainant or for which hadd may not be enforced under this Ordinance, shall be liable to tazir. (2) Whoever, commits Zina liable to tazir shall be punished with rigorous imprisonment for a term which may extend to ten years and with whipping numbering thirty stripes, and shall also be liable to fine. (3) Subject to subsection (4), who ever commits Zina-bil-Jabr liable to tazir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty-five years and shall also be awarded the punishment of whipping numbering thirty stripes. (4) When Zina-bil-Jabr liable to tazir is committed by two or mere persons in furtherance of common intention of all each of such persons shall be punished with death. " (11) Kidnapping abducting or inducing woman to compel for marriage etc. Whoever kidnaps or abducts any woman with intent that she may be compelled or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes. and shall also be liable to fine: and whoever by means of criminal intimidation as defined. in the Pakistan Penal Code, or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid. " (16) Enticing or taking away or detaining with criminal intent a woman. Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with intent any woman, shall be punished with imprisonment of either description for a term which may extend to seven years and with whipping not exceeding thirty stripes, and shall also be liable to fine." The F.I.R. version, when put in juxtaposition with the testimony of the prosecutor, Mst. Hafizan Bibi, examined as P.W.4, cannot stand scrutiny. The allegation there was that the referred lady had developed illicit relations with the accused and, on the fateful day, Anwar Begum an aunt of the appellant, had been used as a decoy for the former to leave her husband and family of four children to join the accused. In fact, first informant, Ata Muhammad, (P.W.7), denied having stated in the F.I.R. that the accused was having illicit relations with the prosecutrix, the first informant's daughter-in-law, and only said that he had been informed when returning home in the evening of 7-7-1993, that Mst. Hafizan Bibi had gone away with accused Muhammad Yaqoob, a neighbour. On the other hand, the prosecutrix has maintained that she was led away on false pretences of appellant, Muhammad Yaqoob. Her story, as given out may or may not be true but the events, as would presently be discussed, do indicate that she was enticed away and was subjected to illicit intercourse, a case, at the minimal, falling under sections 4, 10(2) and 16 of the Ordinance. The accused, allegedly, had taken her to Sindh and kept her confined in a bungalow. He, according to her version, used to keep the door of the house locked, whenever, he went out and had also _ posted a guard there. The victim remained with him in such condition for a month and ten days. During the interregnum, as per Mst. ,Hafizan's testimony at the trial. Muhammad Yaqoob used to commit rape on her. She, however, allegedly escaped on finding an opportunity. Catching a train, and somewhat inexplicably paying for the journey, she came to Multan and then to Darya Khan, where her parents resided. In the circumstances, it seems more likely that she was allowed to escape or leave, as the case may have been and for obvious reasons could only go to he: parents. Such parents, apparently motivated to bring about a reconciliation between the spouses, took Mst. Hafizan Bibi, to, the Police Station. Her statement under section 164, Cr.P.C, was then recorded, She had no motive to compromise herself or her family by falsely implicating the accused. The accused in his statement under section 342, Cr.P.C. later raised his finger against one Farooq Azam, the alleged employer of the victim and her father, as the instigator for the false charge. Not even enmity was attributed to such Farooq Azam much less providing any details or causes for the involvement. The explanation of the