P L D 1981 F S C 293 (PLP)

JUSTICE KARIMULLAH DURRANI, MEMBER.-The appellant Zarab Ali Shah son of Lalbar Shah of village Gujar Garhi, Tehsil and District Mardan, and Ms' Zubeda wife of Raza Muhammad daughter of Hakim Khan of Samander Garhi, Tehsil Nowshera, District Peshawar were challaned alongwith five other co-accused, namely, Mst. Taj Mahla, Mst. Taslim Begum, Khanzada, Naeem, and Saleh Muhammad on the complaint of P. W. 11, Raza Muhammad under section 497/498/494, P. P. C. read with section 11/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide First Information Report No. 216 dated 19-12-1979 registered in the Police Station, Nowshera Canton ment, District Peshawar. They were tried in the Court of Mr. Muhammad Azam Khan, Additional District and Sessions Judge, Nowshera. The trial ended in the conviction of the appellant under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He was also convicted under section 16 of the said Ordinance and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500, or in default to undergo two months' simple imprisonment under each count. An additional sentence of whipping by five stripes was also passed upon the appellant under the first count. The co-accused Zubeda was also convicted under section 10(2) of the Ordinance and sentenced to three years rigorous imprison ment with a fine of Rs. 500, or in default to undergo simple imprisonment for a further period of two months. Similarly; Mst. Taj Mahala was also convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced in the like manner. The rest of the accused persons were acquitted. Out of three above-named convicts, Zarab Ali Shah has come on appeal to this Court against his convictions and sentence passed upon him.

2. The prosecution story as gleaned from the First Information Report, lodged by P. W. 11, Raza Khan, the husband of Msi. Zubeda accused is that the co-accused Zubeda was married to the informant about two years prior to the lodging of the report. She bad left the house of the complainant about 7/8 months earlier because of estranged relations between the spouses and had started living with leer parents. It was alleged that Mst. Zubeda sometime aftewards disappeared from the house of her parents and the complainant was in search of her when, on 7-11-1979 he saw her boarding a Tonga in company with co-accused Mst. Taj Mahala and others. The complainant asked the assistance of the guard who was posted outside the nearby situate National Bank of Pakistan and both of them succeeded in bringing them to the Police Station, Nowshera Cantonment where both the parties were proceeded against under section 107/151 of the Code of Criminal Procedure for maintenance of peace. The complainant further alleged that on the following day i.e. on 8-11-1979 they came to the Court premises for affecting compromise. There a motor-car carrying co-accused Khanzada, Saleh Muhammad and Naeem arrived. These persons stopped the car and forcibly carried away Mst. Zubeda, the wife of the complainant and Mst. Tai Mahala and speeded away towards Mardan. Since then Mst. Zubeda was missing but later on it came to his knowledge that she was living with the appellant Zarab Ali Shah in his village, where they had entered into an illegal marriage and were thus committing the offence of Zina. This report was lodged on 19-12-1979 at 11-30 a. m. in the Police Station, Nowshera Cantonment. It is in evidence that the accused Zarab Ali Shah produced Mst. Zubeda on his volition before the Criminal Investigation Branch of the Police on 18-12-1979. It was on the following day that the First Information Report was registered by the police although, it is alleged by the complainant that he made a written complaint to the I.-G. P. on 19-11-1979 which was marked to the local police and was accordingly delivered in the Police Station, Nowshera Cantonment, on the same day.

3. The accused-appellant pleaded not guilty to the charge and was therefore, put to trial with other co-accused. The prosecution produced 14 witnesses in support of its case. P. W. 1, Sibghatullah F. C. No. 69 and P. W. 2, Gulroz Khan, A. S. I. are the witnesses of the arrest of acquitted co-accused and are therefore, not relevant to the case of the appellant. P. W. 3, Abdul Wakeel Khan, A. S. I. had -witnessed the production of Mst. Zubeda by Zarab Ali Shah appellant to the Crime Branch of the police and so is P. W. 4 Pir Muhammad who had witnessed the Memo. relating to the recovery of the said co-accused (Exh. P. C.) P. W. 13, Syed Zahiruddin Inspector, Special Branch Police, Peshawar, was the Officer before whom the abductee was produced by the appellant. He had also partly investigated the case. Mian Swab Gul, Jamdad Khan and Abdur Rehman Khan P. Ws. 5, 6 and 7 had witnessed the Nikah of Zubeda with the complainant. P. W. 3, Lady Doctor Chaman Ara, Medical Officer, Women Section, Civil Hospital Charsada, on 2-1-1980, examined the co-accused Zubeda and found her pregnant of about 2/3 months duration. P. Ws. 9 and 10, Ghulam Nabi Khan A. S. I. and Bahar Gul Khan A. S. I. are witnesses of the events which do not concern the appellant. The main evidence against the appellant consists of the statement of complainant, P. W. 11 Raza Muhammad. This witness has repeated what he had stated in the First Information Report. A suggestion was put to him during the course of cross-examination to the effect that he had divorced his wife Zubeda on receipt of Rs. 7,000, from the appellant partly in cash and partly in the form of a Tonga as compensation therefor and that divorce deed was actually drawn but the complainant rail away from the Court premises by leaving the said deed with the petitions writer. It was also alleged that the complainant was after extorting and additional sum of Rs. 3,000, from the appellant and had therefore, brought the instant case against him. The correctness of these suggestions were denied by the appellant but these suggestions were admitted by one of the prosecution witnesses, namely Jan Muhammad, P. W. 14, who had acted as an Arbitrator between the parties. According to this witness a brother of the appellant is employed in his hotel situate in Aman Ghar, where to the father of the appellant came and asked him to bring about settlement between the husband of Zubeda and the appellant Zarab Ali Shah after whom the former was alleged to have come. This witness stated that he himself handed over a sum of Rs. 4,500, in cash to the complainant and got a further amount of Rs. 2,500, adjusted towards the delivery of a Tonga and that a divorce deed was drawn in lieu of the payment of the compensation in his presence but the complainant refused to sign the divorce deed which remained with the petition writer. In the cross-examination, this witness further admitted that the complainant had divorced his wife Mst. Zubeda on the day when they were proceeded against under section 107/151 of the Code of Criminal Procedure. Now, as per the complainant, these proceedings were taken on 7-11-1979 i. e., about 12 days before the written complaint to the I. G. P. (Exh. P. A/2) was submitted by the complainant. In other words the complainant bad divorced his wife even before making the earliest complaint.

4. The appellant in his statement under section 342, Code of Criminal Procedure denied the charge, and pleaded his innocence on the ground that he did not know about the previous marriage of Zubeda and that he was told that Raza Muhammad had divorced her. The accused further stated before the Court that when he came to know about the charge against him and Mst. Zubeda he searched for her and produced her to the Investigating Officer of the C.I.A.

5. The above summary of the evidence would show that apart from the fact that the accused-appellant himself had produced the co-accused Zubeda before the Police, there is no other evidence forthcoming on the record to connect the accused either with the abduction of the co-accused or with the commission of the offence of Zina with her. It was nobody's case that the accused-appellant had kidnapped or enticed away the wife of the complainant. He does not figure in the First Information Report or in the statement of the complainant as one of those persons who had forcibly taken away Mst. Zubeda in a motor car. The whole of the prosecution evidence is absolutely silent on the question of how and when Mst. Zubeda reached the house of the appellant. Similarly, there is no evidence to show that the appellant was aware of or suspected the existence of marriage of Zubeda with the complainant or that he ever indulged in sexual intercourse with the co-accused. Neither the charge of abduction nor of the commission of offence of Zina could, therefore, be said to have been proved against him.

6. Sahibzada Akhtar Munir, the learned Assistant Advocate-General, N.-W. F. P. has pressed into service the medical evidence of the state of pregnancy of Mst. Zubeda as found by the Lady Doctor, Chaman Ara as a proof. of the commission of Zina by the accused-appellant with the said co -accused. This argument is not valid in that there is nothing on the record to show that the accused-appellant had access to the lady in question at the time of 'the conception of pregnancy which was stated to be of a duration of about 2 or 3 months on 2-1-1980, the date of the medical examination. On the other hand it is the case of the complainant himself that she was for the first time recovered on 7-11-1979 and had come with him to the Court premises on the following day wherefrom she was kidnapped by the co-accused named in the First Information Report and at that time, according to the prosecution the appellant had not yet come into the picture. The state of pregnancy could be legal evidence of the commission of offence of Zina by a female, in case it is established that she, at the relevant time, did not have society of her husband and that too only for bringing home the guilt to the lady concerned. The state of pregnancy by itself can never be a proof of sexual intercourse by a particular male who is not otherwise proved to have had the facility of close proximity proved to have had the facility of close proximity with that lady. Thus the pregnancy of the co-accused of a duration of 213 months does not help the prosecution in any manner whatsoever in the instant case. The record also contains sufficient, material to presume that the complainant had divorced his wife before the registration of the case. In such state of affairs, there is nothing to show whether, Zubeda reached the appellant before the pronouncement of divorce or thereafter. Also there is no evidence to suggest that the appellant had the knowledge of the existence of the marriage of the co-accused Zubeda with the appellant.

7. The result of the foregoing discussion is that the prosecution has not succeeded in proving its case against the appellant beyond reasonable doubt. In this view of the matter, the conviction of the accused on both counts cannot be sustained. Consequently, the appeal is allowed and the conviction of the accused-appellant under sections 10(2) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentences passed upon him thereunder are set aside and he is acquitted of the charge. The appellant should be set free forthwith if not required under any other charge. S. A. H. Appeal allowed.