1989 P Cr (PLP)

3. The prosecution has examined 9 witnesses. P.W.1 Muhammad Ramzan is the father of the husband of Mst. Zarina. He has filed the complaint with police and in his statement in Court repeated what he had said in the F.I.R. In his statement he has stated that Muhammad Iqbal and Sanullah had abducted Mst. Zarina on a previous occasion and kept her with them for 15 days. Appellant Muhammad lqbal had developed illicit connection with Mst. Zarina prior to her abduction. That Muhammad Iqbal had eloped Mst. Zarina on a previous occasion and had given assurance on the Holy Qur'an that he would not repeat such offence again. Then he proceeds on to state that on the day of occurrence while he was asleep in his house, he was awakened by his son Muhammad Nawaz and Raza Muhammad P.Ws. and was informed of the disappearance of Mst. Zarina from the courtyard of the house of Muhammad Nawaz. On this information he had gone out of the house and seen a white colour car in which Mst. Zarina and her two abductors were sitting. They had escaped driving away the car before he could apprehend them. After reporting the matter to the police he did not go with the police in search of the abductee nor he knew as to when she was recovered. The delay in lodging the F.I.R. has been explained by this witness by saying that during this period of 25/26 days they were negotiating with the accused for the return of his daughter‑in‑law using good offices of some notables of the area. He has further stated that he was again called by the police after 4/5 months and was given a surprise by finding Mst. Zarina and Muhammad Iqbal present in the police station. Both were confined in the police lock‑up. He admits that no report was lodged with the police of the earlier disappearance of Mst. Zarina from her house or her recovery after 15 days from the accused Muhammad Iqbal and Sanaullah.

4. P.W.3 Muhammad Nawaz is the husband of Mst. Zarina. He has supported version of his father P.W.1 Muhammad Ramzan. In, his cross- examination he has admitted that before awaking I had not seen any accused entering into my house or going outside of my Haveli'. He has further admitted that I had awakened to Raza Muhamamd P.W.1 and stated to him that my wife was not on her bed. I had not stated before the police in, "my statement that the accused entered into my Haveli at 11‑00 p.m.

5. P.W.4 Malik Gul Muhammad is a retired Subedar. He has remained associated with the investigation from the date of the disappearance till the date of recovery of the woman. So far as the incident of 6‑6‑1986 is concerned, he is the witness to handing over of the Nikahnama (Exh.P.B.) to the police by the complainant, but his main role would come later when he has accompanied the police searching party and has gone to Sukkur and Rohri and has witnessed the arrest of appellant Muhammad Iqbal on 4‑10‑1986 from a hotel in Darya Khan. In his statement in Court he has stated that he had gone with the police party and in his presence the police had arrested Mst. Zarina and Muhammad Iqbal accused from a hotel at Darya Khan. On the personal search of appellant Muhammad Iqbal a revolver (Exh.P.l) alongwith six live cartridges (Exhs.P.2/1 to 6) and a licence (Exh.P.3) were recovered vide memo. (Exh.P.D.) which he had attested. He has also described the recovery of a pair of ear‑rings (P.5), two Kokas of gold (P.5/1‑2) and clothes etc. from the possession of the two accused at the time of their arrest. He claims that he had accompanied the police on their journey to Sukkur and Rohri in search of the accused and on 4‑10‑1986 at 7‑30 a.m. the two accused namely Muhammad Iqbal and Mst. Zarina were arrested at his pointation while they were coming out from the hotel to board a bus.

6. P.W.5 Habib Ullah S.I. was incharge of this case in late September, 1986. He left for Sukkur on 30‑9‑1986 in search of the accused. As Muhammad Iqbal was an employee of Railway Police the I.O. started probe from the Railway Police office at Sukkur. After visiting Rohri and Sukkur he reached Darya Khan on 4‑10‑1986 where he arrested appellants Muhammad Iqbal and Mst. Zarina on the pointation of P.W.4 Malik Gul Muhammad. He also recovered licensed revolver and six cartridges from the possession of the accused/appellant Muhammad lqbal. Then he sent Muhammad Iqbal and Mst. Zarina for medical examination and after completing investigation challaned the accused.

7. P.W.6 Amir Sultan, Constable Bhakkar had accompanied Habib Ullah, S.I. on his trip to Sukkur and Darya Khan. In his statement he has corroborated the statement of S.I. Habib Ullah. He took Mst. Zarina for medical examination to the lady doctor and he was handed over two sealed envelopes by the lady doctor containing material for chemical examination which he passed on to Habib Ullah S.I.

8. P.W.8 War Ullah Sheikh, is Medical Officer, D.H.Q., Faisalabad. On 5 10‑1986 he examined appellant Muhammad Iqbal son of Dost Muhammad and his opinion is that Muhammad Iqbal was a young man of 32 years. He had well -developed external genetalia and well‑developed secondary sexual characters. In his opinion there was nothing to suggest that Iqbal was not capable of sexual act.

9. P.W.9 Adalat Hussain is Foot Constable. On 10‑10‑1986 he was given two sealed envelopes by Sultan'Ahmad, M.H.C. Police Station Kallurkot, which he delivered in the office of the Chemical Examiner on 11‑10‑1986 intact.

10. The accused have pleaded not guilty. Appellant Muhammad Iqbal has denied that he abducted Mst. Zarina on the night between 5th and 6th May, 1986. He has also denied his arrest from the hotel in Darya Khan. So far as the recovery of the revolver is concerned, he admits that the weapon is his property, but it was taken over by the police from his house. He has also denied the illicit connection with Mst. Zarina. Mst. Zarina in her statement denied the occurrence of earlier abduction as well as her abduction on the night between 5th and 6th May, 1986. She denied her recovery and arrest from the hotel and disowned the articles saying that they belong to her husband Muhammad Nawaz. On the charge of Zina her answer is worth noting, which is to the following effect:‑ It is incorrect in fact the complainant party in collusion with the lady Doctor and the police obtained a false report against me. I have been in the judicial lock‑up for the last one and a half years. I disputed the factum of pregnancy. I was re‑examined by the Lady Doctor and after re -examination she had opined that I was not pregnant. She has explained the presence of semen on swabs examined by the Chemical Examiner vide report (Exh.P.H.) dated 14‑10‑1986. Her explanation is as follows: I was kept in the house of my husband for several days and he had been committing sexual intercourse with me. A night preceding the date of examination he committed sexual act with me. Her answer to question No.8 is also very revealing and can be quoted hereunder, for ready reference:‑ My husband is a man of mistrust nature, he suspected me of infidelity. He used to maltreat me off and on. On account of constant maltreatment I left the house of my husband on my own accord and used to live with my relatives. My parents were also under the influence of my husband so they also did not take care of me.

11. One more feature of the case, which deserves attention, is that after her recovery allegedly from the hotel she was sent to P.W.2 Dr. Falak Rifat. W.M.O. D.H.Q. Hospital, Bhakkar, who examined her on 5‑10‑1986. By this report Mst. Zarina was found to be pregnant and the pregnancy was of two months. This is very important feature because Mst. Zarina disappeared from the house on the night of 5th and 6th May, 1986 and was recovered after five months on the 4th of October, 1986. If the finding of pregnancy was correct then naturally this pregnancy was the result of co‑habitation of this woman with her consort appellant Muhammad Iqbal. But this piece of evidence has been totally eliminated and demolished by another certificate issued by Dr. Saadat Naqvi, b whom she was examined at the request of the Superintendent, Central Jai Mianwali under the orders of the learned District Judge. This report is speaking report and gave a clear finding that `pregnancy test done by Pathologist is negative. So she is not pregnant'.

12. In the final analysis if the evidence on the record is sifted, it is clear that neither the charge of abduction under section 16 of the said Ordinance is established nor there is concrete evidence on the record to prove the charge of Zina within the meanings of section 10(2) of the said Ordinance. The learned Sessions Judge has rightly held that `charge under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, against Sanaullah and lqbal accused is not proved because Mst. Zarina accused was consenting party. The only charge under which the learned Sessions Judge, has convicted the two appellants Muhammad Iqbal and Mst. Zarina is the charge of Zina, but there is no evidence to support this charge. Presence of semen found on the swabs taken from the internal vagina of the woman has been explained by her in her statement quoted above in this judgment. Other material evidence was the two months pregnancy, but that too has been demolished by another medical examination dated 20‑7 1987, carried out under the orders of the learned Sessions Judge himself. We are, therefore, of the opinion that her conviction under section 10(2) of the said Ordinance also cannot stand. We would, therefore, allow these two appeals, set aside the conviction and sentences awarded to the appellants by the learned Sessions Judge. Both the appellants should be set at liberty if they are not wanted in any other crime. N.H.Q./471/FSC Appeals accepted.