1989 P Cr (PLP)

MUFTAKHIRUDDIN, J.‑‑ This is an appeal against the order of conviction passed by Mr. Abdul Ghaffar Khan, Additional Sessions Judge‑III, Rahimyar Khan on 1‑3‑1987 whereby the appellant Ghulam Rasool has been found guilty of offences punishable under sections 10(2) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and also under section 363, P.P.C. and sentenced as under:‑ (i) Under section 10(2) 7 years' R.I. with 30 of the said Ordinance. stripes and a fine of Rs.1,000 or in default of payment of fine to further undergo R.I. for six months. (ii) Under section 16 of 5 years' R.I. and a fine the said Ordinance. of Rs.1,000 or in default of payment of fine to further undergo R.I. for six months. AND (iii) Under section 363, 5 years' R.I. and a fine P.P.C. of Rs.1,000 or in default of payment of fine to further undergo R.I. for six months.

2. On 8‑3‑1983 Muhammad Ramzan son of Imam Bakhsh, caste Sial a resident of Muradpur Sial Tehsd Liaquatpur District Rahimyar Khan filed a complaint and stated therein that Ghulam Rasool had developed illicit relationship with Mst. Chanan his sister for which he had been restrained by Allah Bakhsh (his brother‑in=law) which offended Ghulam Rasool. Later one day when Allah Bakhsh had gone to Khanewal for condolence to his relations, Ghulam Rasool came alongwith some people, abducted Mst. Chanan and also Mst. Zubaida and Muhammad Sadiq and took away golden ornaments, cattle-heads and other valuables. The incident was witnessed by Muhammad Nawaz son of Muhammad Yar, Shah Muhammad son of Lahna and Abdul Ghaffar. Allah Bakhsh was informed of the occurrence at Khanewal, he came and contacted the accused but of no avail. An application was made by Allah Bakhsh to S.D.P.O. Liaquatpur on 22‑9‑1982 but that too was not attended to. Allah Bakhsh then filed a writ petition in the High Court at Bahawalpur Bench and the same was dismissed on 2‑11‑1982. Ghulam Rasool has married Mst. Zubaida to his son and Muhammad Sadiq was being held in illegal confinement. Mst. Channan Bibi and Ghulam Rasool had been committing Zina with each other.

3. The accused/appellant pleaded not guilty and the complainant produced four witnesses in support of the charge and they are P.W.1 (Muhammad Ramzan the complainant) P.W.2 (Abdul Ghaffar), P.W.3 (Shah Muhammad) and P.W.4 (Muhammad Sadiq the alleged abductee). The accused in his statement under section 342, Cr.P.C. stated his defence plea in answer to question No. 6 in these words:‑ "Mst. Zubaida the daughter of Mst. Chanan has of her own accord married with my son, against the wishes of complainant party. Moreover Mst. Manzoor Khatoon, niece of Muhammad Ramzan complainant is married to my son Saleh Muhammad who is not now living with her husband due to some family dispute. Complainant party seeks the divorce of Mst. Manzooran and demanded a relation in exchange of Mst. Rani my daughter in lieu of Mst. Zubaida which I have refused. Due to this family dispute this false case has been made against me. The P.Ws. are related to the complainant and inimical towards me." And produced Mst. Zubaida Bibi who deposed that the complainant, her maternal‑uncle was annoyed because of her marriage with Allah Ditta. Since the father used to beat her mother (Mst. Chanan) she had filed a suit for dissolution of marriage against father. Ghulam Rasool and Mst. Chanan (her mother) have been living separately. Ghulam Rasool has a wife and 10/11 children from that wife. Mst. Zubaida further explained that nobody had abducted her and her Nikah has been duly registered and that she was married to a son of Ghulam Rasool by her mother: The allegation about the abduction of Muhammad Sadiq was also repudiated by her.

4. The trial Court, however, convicted the accused/appellant and has sentenced him as mentioned above. We have heard Syed Muhammad Anwar, Advocate, for the appellant, Mr. Ghulam Mustafa Bodla, Advocate, for the State and with their assistance have gone through the record. The significant aspect of the case is that Mst. Chanan was declared absconder and Muhammad Sadiq the alleged abductee has appeared and deposed that he was kept by Ghulam Rasool for two years and thereafter was taken to Hyderabad where he was sold by the accused/Ghulfim Muhammad to one Sindhi who kept him for two years in illegal confinement but about one year back he got a chance to run away. But in cross‑examination he could not name the Railway Station wherefrom he had boarded the train nor disclosed the name of the person who had paid him the money for the purchase of Railway ticket. Even the Railway fare he had paid was not stated though specifically he was asked. It was contended that he had filed an application in a Court on coming back for recording his statement but was not heeded to and was directed to appear before the trial Court (no application or a copy thereof and the order recorded thereon has been brought on record). P.W.1 Muhammad Ramzan is not an eye‑witness. He was confronted during his cross‑examination with the application (marked `A') which he allegedly had made earlier wherein he did not make any allegation about the abduction of Muhammad Sadiq nor had furnished the particulars of the stolen ornaments in the complaint or the application. This witness has admitted that Mst. Chanan Bibi was sued for the restitution of conjugal right by Allah Bakhsh her husband and that she had filed a suit against him in the Court of Assistant Commissioner, Liaquatpur under section 323/506, P.P.C. P.W.2 (Abdul Ghaffar) in his deposition before the trial Court has stated that `when Allah Bakhsh had gone to Khanewal since three years and nine months ago Ghulam Rasool abducted Mst. Chanan wife of Allah Bakhsh alongwith his daughter Mst. Zubaida aged 18 years and a minor son Muhammad Sadiq and had deprived Allah Bakhsh of his entire domestic paraphernalia, a pair of bullocks and a buffalo and the incident was seen by Shah Muhammad and one Muhammad Nawaz (not examined in Court). Ghulam Rasool was accompanied by five or seven persons who had transported the entire paraphernalia. The witness was sitting in the courtyard of his house where P.W. Shah Muhammad had come to his house. In the cross -examination this witness admitted that he is related to Muhammad Ramzan and also that he was one of the accused in case State v. Abdul Ghaffar under section 307, P.P.C. but alleged that the same was motivated by Ghulam Rasool (the accused). The witness further admitted that he was also involved in a theft case in which Ghulam Rasool was a witness against him and also there was another case under section 325, P.P.C. against him. P.W.3 (Shah Muhammad) (a relation of complainant) conceded that he is a resident of another village. He was confronted with his earlier statement dated 2‑4‑1983 wherein he had not said about the theft at all nor he had mentioned the name of Abdul Ghaffar (P.W.2) to the effect that he was also present at the time of abduction (a fact asserted by P.W. Abdul Ghaffar).

5. The material omission and the contradiction in the statements of the prosecution witnesses especially when it comes from the interested witnesses inimical to the accused appellant assume importance and in the absence of the; co‑villagers (the impartial witnesses of the locality) cannot be made the basis for conviction. Allah Bakhsh the husband is not aggrieved of the incident and did not appear in Court nor lodged any report about theft or abduction of his children. Mst. Chanan even according to the prosecution witness is an old lady, Mst. Zubaida being about 18 years (as per statement of P.W.2) has belied the allegations of her own abduction and the alleged abductee (Muhammad Sadiq) on account of his concealment of material facts renders himself unworthy of an credit, the entire prosecution case becomes doubtful. The learned counsel for the State has also conceded that there is no evidence on record about the Zina. The allegation against Ghulam Rasool and the conviction recorded under section 10(2) of the said Ordinance therefore according to him is not sustainable in law.

6. For the above reasons we are of the view that it would not be safe to maintain the conviction recorded against the appellant. Accordingly the appeal is accepted, the conviction and sentences passed against the accused/appellant art set aside and he is acquitted of the charges. He shall be released forthwith if not required in any other case. S.A./463/FSC Appeal allowed.