1995 P Cr (PLP)

S. 16

Woman (subject to enticement) exempt from trial as accused-- Section 16 specifically exempts the woman who is the subject of enticement from being tried and punished as an accused and only the person who effects the enticement is guilty of the commission of the offence thereunder. Nazir Ahmad Qureshi for Appellant. Ch. Muhammad Ibrahim for the State. Date of hearing: 15th November 1994. Complainant Bilal Hussain submitted a written complaint in Police Station Jampur on 22-8-1991 wherein he disclosed that his wife Mst. Fauzia had been abducted by accused Malik Waqar, Hussain about a month and a half earlier. He also disclosed that he was a "Hawker" in the bus stand and he was not present in the house when the occurrence took place and he found his house locked when he came back from his job. P.W.4 Jahan Khan, A.S.I. arrested both Mst. Fauzia and Malik Waqar Hussain on 26-8-1991. The appellant was medically, examined on the same day by P.W.1 Lady Dr. Shahina and her vaginal swabs were found stained with semen.

2. After investigation both the accused, appellant Mst. Fauzia and Malik Waqar Hussain were sent up for trial before Additional Sessions Judge, Rajanpur, Camp at Jampur, who charged both of them under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which both of them pleaded not guilty and claimed trial.

3. After the conclusion of the trial the learned Additional Sessions Judge convicted both the accused under section 16 of the Hudood Ordinance and sentenced each of them to undergo rigorous imprisonment for 2 years, to suffer; 5 stripes and to pay a fine of Rs.1,000 or in default to further undergo rigorous imprisonment for one month. Convict Mst. Fauzia has challenged her conviction and sentence by the appeal in hand, sent from jail.

4. I have minutely perused entire record of the case and have also heard learned counsel for the parties.

5. The learned Additional Sessions Judge had charged appellant Mst. Fauzia only for the offence under section.10(2) of the Hudood Ordinance and no charge under section 16 of the Hudood Ordinance had been made against her. The charge-sheet will clearly indicate that only her co-accused Malik Waqar Hussain was charged under section 16 of the Hudood Ordinance. After the conclusion of the trial the learned Additional Sessions Judge had acquitted 4 the appellant for the offence under section 10(2) of the Hudood Ordinance. Since the appellant had not been charged under section 16 of the Hudood Ordinance, she could not be convicted for that offence as she was not put to trial for that offence. The learned Additional Sessions Judge was under some misconception about the provisions of section 16 of the Hudood Ordinance, The language of section 16 of the Hudood Ordinance is very clear and it specifically exempts the woman who is the subject of the enticement, from S being tried and punished as an accused and it is the person who effects the enticement is guilty of the commission of the offence under section 16 of the Hudood Ordinance. Even otherwise no evidence had come on the record to prove the allegation of enticement of the appellant by her co-accused she had been inappropriately convicted and sentenced by the learned Additional Sessions Judge.

6. Consequently the appeal is accepted. The conviction and sentence of the appellant Mst. Fauzia wife of Bilal Hussain recorded on 28-5-1994 by the learned Additional Sessions Judge, Rajanpur, Camp at Jampur, are set aside and she is acquitted of the offence for which she was convicted and sentenced. She shall be set at liberty forthwith if not wanted in any other case. N.H.Q./1926/FSC Appeal accepted.