2012 P Cr (PLP)

SHAHZADO SHAIKH, J.

This appeal has been moved by appellant Nadeem to challenge judgment dated 23-11-2010 delivered by learned Additional Sessions Judge, Chiniot, whereby he was convicted under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced to 10 years' R.I. with fine of Rs.50,000 and in default of which to further undergo 6 months' simple imprisonment. The accused was further convicted under section 16, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced to 7 years' R.I. with fine of Rs.50,000 and in default of which,? to? further? undergo? 6? months'? simple? imprisonment.? Both the? sentences? were? ordered? to? run? concurrently? with? benefit? of section 382-B, Cr.P.C. 2.???????? Brief facts of the case as emerged from application Exh.P-A filed by complainant Hafiz Abdul Majeed P.W.1 are that on 15-10-2002 at about 8-00 p.m. accused Mst. Farzana Bibi P.W.7 came to the house of? the complainant and took daughter of the complainant Mst. Amna Bibi? to? her? house? on? the? pretext? to? watch? T.V. Drama. When at about 9-30 p.m. wife of the complainant Mst. Zetoon Bibi went to the house of the accused, all the accused except Muhammad Hanif had gone out of the house. The complainant asserted that after a short while, witness Abbas Ali told her that he had seen the victim Mst. Amna Bibi holding? a? bag? in? her? hand? in? the? company? of? the? accused Nadeem, Mst. Kaneez Bibi and Mst. Farzana Bibi standing at Sargodha Road near Ayubia Hotel, waiting for the bus. On hearing this news, the complainant along with Abdul Aziz immediately went to the house of the accused where after a long dilly-dallying he admitted to have abducted the daughter of the complainant Mst. Amna Bibi and promised to return her soon. The complainant further asserted that Mst. Amna Bibi also took away 10 Tolas gold ornaments, 15 pairs of silk clothes and cash Rs.60,

000. The complainant also asserted that his daughter was enticed away by the accused for committing Zina with her. 3.???????? The? learned trial Court framed charges against the accused on 7-6-2003 under sections 16 and 10(3), Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The accused did not plead guilty and claimed trial. 4.???????? The prosecution in order to prove its case produced 8 P.Ws. at the trial. Dost Muhammad A.S.-I. appeared as C.W.1 to verify the investigation carried out by Shafqat Abbas A.S.-I. who expired during the trial. The gist of the evidence of the witnesses is as follows:-- (i)???????? P.W.1: Karam Din is a Waj Takkar witness. He met with the complainant Hafiz Abdul Aziz and P.W. Abbas Ali who had told him that he saw the victim in the company of the accused and then all went to the house of the accused who promised to return her soon. (ii)??????? P.W.2: Abdul Aziz corroborated the statement of P.W.1 Karam Din. (iii)?????? P.W.3: Complainant Hafiz Abdul Majeed is complainant of the case. He endorsed the contents of the crime report lodged by him. (iv)?????? P.W.4: Constable Muhammad Shareef is a formal witness of transmission of a sealed parcel to the office of Chemical Examiner, Lahore. (v)??????? P.W.5: Constable Mst. Mukhtaran Bibi is a formal witness of getting the victim medically examined from the lady doctor. She was also handed over one phial and an envelope by the lady doctor, which she produced before the Investigating Officer of the case. (vi)?????? P.W.6: Lady Dr. Miftah Shaukat medically examined the victim Mst. Amna Bibi and, inter alia, observed as under:-- "On external examination there was no mark of violence all over the body. On P/v examination, hymen was old ruptured, healed. Vagina admits two fingers easily, walls of vagina were lax." In her opinion, the examinee was used to regular sexual intercourse. In cross-examination, this doctor stated that "rape by force may not be possible in this case". According to the report of Chemical Examiner, the vaginal swabs were stained with semen. (vii)????? P.W.7: Mst. Amna Bibi is victim of the case. She supported the occurrence and corroborated the prosecution story. (viii) P.W.8: Dost Muhammad A.S.-I. while posted as Moharrar at the Police Station recorded the formal F.I.R. Exh.PA/1. He also kept the parcels in the Malkhana in safe custody which remained intact without any interference. C.W.1: Dost Muhammad A.S.-I. also appeared as C.W.1 to substantiate? the investigation carried out by Shafqat Abbas A.S.-I, who expired during the trial. 5.???????? After closure of the prosecution evidence, the learned trial Court examined all the accused under section 342 of the Code of Criminal Procedure on 28-9-2010. Since all the accused were acquitted by giving them benefit of doubt except accused Nadeem who was convicted and sentenced, only his defence plea is narrated herein. He, inter alia, pleaded his innocence. In reply to the question "why this case against you and why the P.Ws. deposed against you?" the accused Nadeem stated as follows:-- "Mst. Amna Bibi got marriage with me with her free consent but later on she denied this fact under the pressure of her parents. Mst. Amna Bibi forced me to get marriage with her. After her recovery from Kot Nikkah, she remained in Police Station City Chiniot? for? one? day? and? her? parents? changed? her? mind. Mst. Amna Bibi is equally partner of this case. Her parents were not agree on this marriage and due to this grudge, the complainant got registered this false case against me and my co-accused. All the witnesses are inter se related." 6.???????? The? accused? neither? opted? to? record? his? statement? under section 340(2), Cr.P.C. nor did he opt to produce any evidence in his defence. 7.???????? The learned trial Court, after hearing the arguments of the contending parties and assessing the evidence available on the record, has convicted and sentenced the appellant as mentioned in opening paragraph of this judgment. 8.???????? Mr. Khawar Mehmood, learned counsel for appellant Nadeem has formulated the following points:-- (i)???????? The occurrence took place on 15-10-2002 whereas the F.I.R. was got registered by the complainant on 20-10-2002 with a delay of five days. The delay in lodging the F.I.R. is fatal for the prosecution case because the F.I.R. was lodged with consultation, deliberation and with some legal assistance. (ii)??????? The evidence of P.W.3 Hafiz Abdul Majeed complainant and P.W.2 Abdul Aziz is based on hearsay evidence, which is not admissible. (iii)?????? It was the duty of the prosecution to prove the facts regarding section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 regarding enticement of the victim by Nadeem appellant. (iv)?????? Since the offence regarding enticement of the victim was not proved by the prosecution, section 10 of the Ordinance is not applicable to this case. (v)??????? There are many contradictions between the F.I.R. and the statement of the alleged victim. (vi)?????? The only evidence which has been relied upon by the learned trial Court is the statement of the victim, which is not confidence-inspiring because the gold articles weighing 10-tolas, 15 suits of clothes and Rs.50,000 were not recovered from the appellant. (vii)????? During investigation Mst. Kaniz Bibi and Mst. Farzana Bibi were declared innocent and they were also acquitted by the learned trial Court, therefore, the story of the prosecution has not been proved and there are many contradictions in the evidence of the P.Ws. (viii) The offence of zina-bil-jabr has not been proved by the medical evidence. According to MLR it is clear that no marks of violence were present on the body of the alleged victim, therefore, allegation of zina-bil-jabr has not been proved and the conviction of the appellant under section 10 of the Ordinance is not permissible in the eye of law. 9.???????? On the other hand, Malik Rab Nawaz, learned counsel for complainant Hafiz Abdul Majeed has raised the following points:-- (i)???????? The delay in lodging the F.I.R. of about five days is not fatal to the prosecution case because in this case family honour and prestige is involved. (ii)??????? The accused took a specific plea that the victim entered into Nikah with her free consent with the appellant but the accused failed to produce copy of Nikahnama or any witness in support of his plea. Furthermore, the accused refused to appear as his own witness under section 340(2), Cr.P.C. in support of his version. (iii)?????? The victim, on her return, filed a suit for jactitation of marriage and challenged her Nikah with the accused. The said suit was decreed in her favour on 13-6-2008 and the accused did not challenge the said judgment/decree and the said judgment/decree attained finality. (iv)?????? In the suit for jactation of marriage, Mst. Amna victim had specifically stated that she was forcibly abducted and she was forced to contract Nikah with the accused and in this way the judgment of the Family Court was obvious wherein it was clearly? mentioned? that? the? Nikah? of? accused? with? the? victim was forged. (v)??????? During? the? period? of? two? days?? between?? 15-10-2002?? to? 17-10-2002 the accused had not given any legal and Islamic justification regarding his stay with a Gher-Mehram girl. (vi)?????? The accused admitted in his statement under section 342, Cr.P.C. that after 17 days he was arrested along with Mst. Amna Bibi, which shows that the victim was in the possession of the accused. (vii)????? The lady doctor categorically stated that the victim was regularly used for sexual intercourse so the medical evidence fully corroborates the ocular account. (viii) When Nikah of the accused was not proved with the victim then it was immaterial whether sexual act was committed with consent or with force. (ix)?????? the learned trial Court gave cogent reasons for conviction of the accused and the learned Defence Counsel failed to show any defect in the judgment of the learned trial Court and there is no misreading or non-reading of evidence available in the impugned judgment. (x)??????? The solitary statement of the victim is sufficient to base conviction provided it is confidence-inspiring and is corroborated by other evidence available on the record. 10.?????? Mr. Nisar Ahmed Virk, learned D.P.-G. appearing for the State has made the following submissions:-- (i)???????? The accused was nominated in the F.I.R. and the delay in lodging the F.I.R. was sufficiently explained by the complainant stating that the accused promised for return of the victim to the complainant. (ii)??????? In this case the star witness was the victim herself who categorically stated that the accused first snatched her valuable ornaments and cash amount on gun-point; therefore extended threat that if she disclosed this fact to anybody he would kill her; then transported her in a Rickshaw and in this way section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 is fully proved. (iii)?????? The victim levelled allegation of zina-bil-jabr against the accused and she was not cross-examined on this point. (iv)?????? The victim stated that her Nikah was performed with Sajid but she was not cross-examined on this point. (v)??????? The victim stated that the accused prepared forged Nikahnama under threat and she filed a suit for jactitation of marriage which was decreed in her favour and the accused did not challenge the said judgment/decree before any forum. (vi)?????? The offence of zina was proved through the medical evidence and the report of Chemical Examiner. (vii)????? The accused took specific plea of marriage but he could not prove the same through documentary evidence because he neither? produced? Nikahnama? nor? any? witness? in? support? of his plea. (viii) The victim was recovered from the possession of the accused. (ix)?????? The victim remained 17 days under the clutches of the accused, therefore,? no? marks? of? violence? in? the? MLR? on? her? body is not fatal. (x)??????? The victim was married with Sajid but Rukhsati had not taken place whereas the lady doctor opined that she was used to regular sexual intercourse which shows that she was used for sexual intercourse by the accused during these 17 days. (xi)?????? The accused did not deny the offence of zina because he himself admitted that he contracted Nikah with the victim. (xii)????? The prosecution has fully proved the case beyond any shadow of doubt against the accused and the learned trial Court has rightly convicted and sentenced the appellant. 11.?????? I have heard the arguments advanced by the learned counsel for the appellant, learned counsel for the complainant as well as the learned D.P.-G. appearing for the State and perused the record with their assistance. The relevant portions of the impugned judgments have been scanned. 12.?????? According to the prosecution version Mst. Amna Bibi left her house along with a bag containing cash Rs.50,000, gold ornaments weighing 10 tolas and clothes. It was alleged in the F.I.R. that accused Mst. Farzana Bibi took Mst. Amna Bibi to her house on the pretext of watching? Drama? on? television.? It? is? not? plausible? that? in? the? night at 8-00 p.m. a young girl was asked by her father to take all these valuable articles and cash amount along with her when there was already apprehension of theft/crime in the area. The victim stated that when she came to the house of Mst. Farzana Bibi accused, accused Mst. Kaneez Bibi and Nadeem were present there; accused Nadeem snatched the bag from her on gun-point and extended threats that if she disclosed this fact to anybody, he would kill her, then he went out to bring a rickshaw and took her away in that rickshaw. This story of the victim does not appeal to a prudent mind that in the presence of his mother and sister. Nadeem appellant, in our culture, could not take away Mst. Amna Bibi victim, after snatching her bag containing valuable articles and cash amount. No mother could allow her son to commit such act of dirty nature, particularly in presence of his daughter. However it seems that there were some already existing relations between the appellant and the victim due to which the appellant/accused was able to take away the victim from her house along with him. She had been travelling through different means of public transportation and remained with the appellant on different populated places but nowhere she tried to raise hue and cry in order to attract the people for her help. However when she along with the appellant was arrested after 17 days, she levelled allegations against the appellant. She stated that the accused boarded her in a bus and took her to Multan where he prepared fake Nikahnama. She admitted that many passengers were present in the bus but she did not raise any alarm to attract the people. However she stated that the accused constantly threatened her on pistol point but neither the pistol was recovered from the appellant nor the other articles i.e. gold ornaments, cash amount and clothes of the victim were recovered from him. 13.?????? Mst.? Farzana? Bibi? is? sister? of? Nadeem? appellant? whereas Mst.? Kaniz? Bibi? is? his? mother? and? it? is? not? possible? in? our society that such close relations could facilitate the accused in such heinous offence. 14.?????? However, the appellant in his statement under section 342, Cr.P.C. admitted his Nikah with Mst. Amna Bibi and in this way he accepted the possession of Mst. Amna Bibi. Furthermore, she was also arrested while in the company of the appellant. The suit for jactitation of marriage was decreed in favour of Mst. Amna victim, therefore, the factum of Nikah between the appellant and the victim is not established yet the fact remains that the victim of her own left her house and went away with the appellant with her free consent and it was thereafter when she along with the accused was arrested, she got recorded statement against the appellant and also filed suit for jactitation of marriage. This part of the occurrence is established from the facts and circumstances of the case. However the element of force is not proved from the evidence available on the record even the medical evidence does not show any mark of violence on the body of the victim. In this situation the ingredients of offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance are not established and at the most this case would tend to fall under section 10(2) of the Ordinance, in the circumstances. 15.?????? In view of what has been discussed above, Criminal Appeal No.3/L of 2011 filed by appellant Nadeem against his conviction under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, is dismissed with the modification of Hudood) Ordinance VII of 1979, for which the learned trial Court had not specified the subsection, in para 9 of its judgment dated 23-11-2010, is specified under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentence of ten years' R.I. is reduced to seven years' R.I. however the sentence of fine of Rs.50,000 or in default thereof to further undergo six months' S.I. is maintained. The conviction under section 16 of the Offence of Zina (Enforcment of Hudood) Ordinance VII of 1979 and sentence of seven years with fine of Rs.50,000 or in default thereof to further undergo six months' S.I. is maintained. Both the sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. as extended by the learned trial Court shall remain intact. 16.?????? These are the reasons of my short order dated 2-8-2012. HBT/20/FSC?????????????????????????? ??????????????????????????????????????????????????????????? Order accordingly.