1993 P Cr (PLP)

Zafar Ullah Khan, Barrister-at-Law and Dr. Farooq A. Chaudhary for Appellants. Shaikh Muhammad Akhtar, Addl. A.-G. with Abdul Samad Hashmi for the State. Date of hearing: 2nd November, 1992. Ahmed (37 years), son of Sardara and his wife, Mst. Haliman (38 years), Salyanas by caste, residents of Chak No.113/7-R, Tehsil Chichawatni, District Sahiwal, have preferred this appeal to impugn the validity of the judgment of the learned Additional Sessions Judge, Jhang, dated the 13th June, 1991, whereby each of the appellants was convicted of the commission of offence of Zina and was sentenced under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), to five years' rigorous imprisonment, thirty stripes of whipping and a fine of Rs.5,000 failure to pay which was to entail sufferance of additional imprisonment for a year. Ahmad was further convicted of the commission of offence of enticing away Mst. Haliman with intent to have sexual intercourse with her and was similarly sentenced under section 16 of the Ordinance. Both the sentences of Ahmad were directed to run concurrently.

2. Mst. Haliman was first married to one Shakoor and after his death was abducted by Mohri, complainant, P.W.5, who contracted marriage with her. The appellants' stance is that Mohri divorced Mst. Haliman on the 19th April, 1984 and after the period of Iddat she married Ahmad. On the other hand Mohri asserted that she had been enticed and taken away by Ahmad and the two had been indulging in commission of Zina.

3. It was on the 19th September, 1989, that Mohri presented written application, Exh.P.D., which constitutes the first information report, to Muhammad Aslam, Assistant Sub-Inspector of the Police, Police Station 18 Hazari, P.W.7, complaining against the misconduct of the appellants and on its basis case for alleged commission of offences punishable under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered against the appellants at Police Station 18 Hazari.

4. The police apprehended the appellants and recovered from their possession two daughters of the complainant and made them over to the complainant on the 24th September, 1989. The appellants contended that it was with the object of securing the custody of his daughters who had by then grown up, that the complainant employed the ruse of setting up of false case against them though in actuality he had long before divorced Mst. Haliman.

5. The learned trial Judge seems to have ignored to note special features of case appearing in the evidence on the record while formulating his decision. In the witness-box the complainant, Mohri, P.W.5, stated on the 13th May, 1991, that about nine years back Ahmad appellant had come to his house and had abducted Mrs. Haliman alongwith her two daughters and that he had been informed by Mehran and Allah Ditta that they had seen the appellants alongwith his daughters boarding a bus at Katcha Pakka More of Rashidpur and going towards Jhang. He added that after searching he had come to know after four or five years that the appellants had been living together in Chak No.1M/7-R of Chichawatni and when he had contacted Ahmad, he had refused to return Mst. Haliman and his daughters. It is rather strange that the complainant let pass a long period of nine years without reporting the matter to the police and kept silent even till five years after Ahmad had declined to restore Mst. Haliman to him. Mst. Haliman's father, Muhammad, D.W.1, and Ahmad's brother, Manzoor D.W.2, have borne out on oath that Mohri had divorced Mst. Haliman and thereafter she had married Ahmad. The defence version, as stated by the learned Additional Advocate-General and learned counsel appearing on behalf of the State seems to be true. The complainant i would not have wasted a moment to report the matter to the police had Mst. Haliman been really abducted by Ahmad. It seems that contention of the appellants that the complainant had set up a false case just to procure his daughters appears to be correct. The daughters are now grown up and the complainant would like to deal with the matter of their marriage himself. The appellants are legally wedded and cannot be said to have committed any offence. The appeal is accepted, the impugned judgment is set aside and the appellants are acquitted of the charge levelled against them. They are on bail. They are discharged of the obligations attending to the bail bonds executed by them. N.H.Q./771/FSC ??????????????????????????????????????????????????????????????????????????????? Appeal accepted.