1981 P Cr (PLP)

SARDAR MUHAMMAD SHARIF KHAN. ACTG. C. J.-This appeal by the Government is directed against the judgment dated 21st December, 1980 passed by the Additional Sessions Judge, Rawalakot at Bagh in appeal against the decision of a Magistrate 1stClass, Bagh whereby Muhammad Yunus respondent was convicted under sections 497 and 498, Penal Code and sentenced to imprisonment and fine both. In default of payment of fine further imprisonment was also to be undergone by him. The learned Advocate-General was heard. Mst. Baano was stated to be the wife of Muhammad Riaz son .of the complainant. It was alleged that Mst. Baano was enticed away by Muhammad Yunus respondent knowing it well that she was married to Muhammad Riaz, with intent to have illicit intercourse with her and was taken to Quetta where offence of adultery was also being committed by them. On the perusal of the judgment of the trial Magistrate, it speaks itself that there was no evidence on record which could lead one to hold that Mst. Baano was enticed away by Muhammad Yunus respondent with intent to hold illicit intercourse with her and that it was within his knowledge that she had already stood married to Muhammad Riaz. Again, there is no evidence to prove that adultery was committed by the respondent with Mst, Baano who was acquitted of the charges on the basis of compromise. May it be that she was recovered from the custody of Muhammad Yunus from Quetta and the allegation against the respondent is that offence of adultery was plurally committed in Quetta and even to that effect there is no evidence on record. On the alleged recovery of the woman from the respondent mere inference would not do, as it cannot alone take the place of proof without any evidence of the commission of the aforesaid offences as required by law that is to say that this is not sufficient to hold that offence of adultery was committed as alleged and if we infer that offence of adultery was at all committed, it was then committed beyond the jurisdiction of the trial Court, As, a matter of fact there is no evidence given on record by any of the prosecution witnesses against the respondent who (witnesses) could have stated that Muhammad Yunus respondent was seen while enticing away the woman and that it was all that within his knowledge, i.e. Mst. Baano was married to Muhammad Riaz at the time of enticing her away with a criminal intent to have illicit intercourse with her or that somebody else should have sexual intercourse with her. A person who entices away a certain woman with intent that she may have illicit intercourse with any person it must be shown that the person while enticing away the woman, bad a knowledge that that woman was the wife of any other man from whose care or from the care of any other person having the same on behalf of the husband of the woman, was enticed away. Again, for the offence of adultery it must be proved that the sexual intercourse was had with the woman by the adulterer within his knowledge that she is the wife of another person or that he had the reason to believe for the woman so adulterated, to be the wife of another man and that this offence was committed without the consent or connivance of that man whom he knows to be her husband. Nothing of the sort to prove the case as warranted by law, was brought on record by the prosecution. The alleged husband, it seems to me, even failed to state before the trial Court that it was without his consent or connivance that respondent kept the woman to have illicit intercourse with her and it was had as such. That being so, we do not find any merit in this appeal and the same is dismissed in limine. Appeal dismissed.