1988 PLP 1931 (SCMR)

NASIM HASAN SHAH, J.‑‑The relevant facts briefly stated are that one Mst. Chagli, the legally‑wedded wife of Amir Bakhsh was on a visit to her parents in village Dadoon. Her father Loung was a Hari of the appellant, namely, Aroo alias Arab son of Ghulam Ali Lashari. The young woman (Mst. Chagli) caught the latter's fancy; he, therefore, abducted her, with the help of armed men some eight years before the lodging of the F.I.R. (which was lodged on 22‑3‑1982). It was alleged therein that the appellant had detained her in his house inside the Kotha and was able to do so as he was a big Zamindar whereas the complainant party were poor Haris and their complaints against him were not entertained by the police and that it was only when Martial Law was imposed that Mst. Khatijan, mother of Mst. Chagli made an application to the Sub‑Martial Law Administrator, Tando Muhammad Khan, setting out all the facts that the police was constrained to take some action on the biding; of Martial Law Authorities (Major Ayub Shah). But as nothing substantial was done by the police. even then, a team of, Military Personnel raided the house of the appellant on 22‑3‑1982 and recovered Mst. Chagli. They recovered the detainee and also an unlicensed sword from the house of the appellant and they were produced before the S.H.O. Bulri Shah Karim whereafter the application of Mst. Khatijan was recorded as an F .I . R . and registered at the police station. The case of the appellant was that Mst. Chagli had lived with him as his wife and that she had been got married to him by her parents. However, no Nikahnama was produced. On the other hand, according to the parents of Mst. Chagli and Mst. Chagli herself, she was already married to one Amir Bakhsh. The appellant was tried under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, by the Additional Sessions Judge, Hyderabad Division, who found him guilty of both the offences and awarded him sentence of imprisonment for life with whipping (15 stripes) and also a fine of Rs.5,000 or in default to undergo further R.I. for 2 months under section 11 of the Ordinance. He was also convicted of the offence under section 10(3; of the Ordinance and was sentenced to suffer 10 years' R.I. and whipping (15 stripes). The substantive sentences of imprisonment were ordered to run concurrently. This judgment was passed on 23‑7‑1983. On appeal, the Federal Shariat Court maintained the finding of the learned trial Court that the appellant was guilty of abduction as well as of Zina‑bil‑jabr (punishable under Tazir) but, however, the appellant's conviction under section 11 of the Ordinance was changed to one under section 366, P.P.C. because the Ordinance of 1979 was not yet enforced when the abduction occurred and he was sentenced to suffer R.I. for 10 years and a fine of Rs.5,000 or in default to suffer further R.I. for two months. The judgment of the learned trial Court so far as the offence under section 10 of the Ordinance is concerned, was maintained and the sentence passed therein kept intact. The appeal was disposed of accordingly on 28‑1‑1984. Hence this appeal to this Court, by its leave. We have gone through the evidence with the help of the learned counsel for the appellant and also heard him in support of the appeal, We agree with him that sufficient evidence does not exist on the record to establish the offence of abduction of Mst. Chagli which is said to have taken place some 8 years before the lodging of the F.I.R. by the appellant. The conviction and sentence under section 366, P.P.C. cannot, therefore, be sustained and is, accordingly, liable to be set aside. However, we are satisfied that the appellant has not been able to establish the factum of Nikah with Mst. Chagli and that he has been committing Zina‑bil‑jabr upon her ever since he brought her to his house. His conviction under section 10(3) of the Ordinance is, therefore, fully justified and calls for no interference. The result is that this appeal is partly allowed. The conviction of the appellant under section 366, P.P.C. and all the sentences imposed upon him for the commission of the said offence are hereby set aside. However, the conviction of the appellant under section 10(3) of the Ordinance is maintained and he shall suffer R.I. for 10 years' R.I. and pay a fine of Rs.5,000 or in default suffer further R.I. for two months as ordered by the Federal Shariat Court. The benefit of section 382‑B, P.P.C. shall also be allowed to him in the matter of computation of sentence that he was yet to undergo. M.Y.H./A‑312/S Appeal partly allowed.