1991 P Cr (PLP)

GUL MUHAMMAD KHAN, C.J.

This order shall also dispose of the suo motu notice issued by this Court to the appellant to show cause why fine, which is a mandatory provision, be not imposed. The appellant challenges through this appeal his conviction and sentences as ordered by Mr. Qamar Ahmed Shaikh, IIIrd Additional Sessions Judge, Karachi East, vide his order dated, 22-3-1990 The appellant was convicted by him under sections 16 and 10. of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced as under: Under section 16 of the Ordinance: R.I. for four years and fifteen stripes. Under section 10 of the Ordinance: R.I. for five years and whipping numbering fifteen stripes. He was given the benefit of section 382-B, Cr.P.C. however.

2. The occurrence took place on 6-8-1988 in the `Jhugi' of the husband of the abductee in Bengali Para. Landhi,, which was reported by Abdul Sattar, P.W.3. He is husband of abducted Mst. Rahima. He alleged that when he came back to his house after day's work, he found his wife and children missing. On inquiry he came to know that his friend Shakeel, who was on visiting terms with him, had taken them away. Mst. Rahima was recovered on 3-9-1988 from a house in Zia-ul-Haque Colony, Gulshan-e-lqbal, in the presence of Abul Hassan, P.W.4, and Muhammad Irfan, P.W.5. She was also,, medically examined by lady Dr. Tahseen Iqbal, P.W.1, who found no marks of violence on her person or the private parts.

3. The prosecution examined six witnesses. Dr. Tahseen lqbal, P. W.1, medically examined the alleged abductee. Abdul Sattar, P.W.3, is the complainant, but he is not an eye-witness of the occurrence: Abul Hassan, P.W.4 and Muhammad Irfan, P.W.5, are the witnesses of recovery, whereas Mr. Muhammad Nooh, P.W.6, has recorded statement of Mst. Rahima under section 164, Cr.P.C. as a Magistrate.

4. The case of the prosecution rests on the solitary statement of Mst. Rahima, P.W.2, but she has not stated a single word alleging the offence of which the appellant was charged and later on convicted.

5. The learned counsel for the State relied on the statement of the abductee made under section 104, Cr.P.C., wherein she had alleged that appellant Shakeel and his companions Mannan, Ghiasuddin and Majjad had forcibly committed sexual intercourse with her for two days and two nights. No signs of such acts were, however, noticed by the lady doctor and there is no evidence to support it.

6. In any case the solitary statement of prosecutrix Mst. Rahima in Court was that she was taken to the house of her brother-in-law. It means that she went of her own accord. From there she was taken to the house of some other person but the same could not be done without her consent or the consent of her brother-in-law. It is there that three men and three females were present. She alleged no offence. The brother-in-law has also not been examined and it is not known why she was not immediately recovered at the instance of the brother-in -law, if an offence was being committed. All these facts create doubt, the benefit of which will go to the accused. Further, she remained out of the house for about 27 days and not for few days. The F.I.R. was also delayed for more than three weeks. The entire prosecution evidence, therefore, inspires no confidence.

7. The upshot of the above discussion is that we are persuaded to agree with the learned counsel for the appellant that the offence in question was not proved. Consequently, we allow the appeal, set aside the conviction and sentences passed against appellant Shakeel son of Moizuddin and acquit him of the charges. He shall be released forthwith if not wanted in any other case. As a consequence the criminal suo motu notice is also withdrawn. S.A./594/F.S.C. Appeal accepted.