2017 PLP 282 (YLRN)

QAZI MUHAMMAD AMIN AHMED, J.

Through this criminal appeal, the appellant Nazam Hussain has assailed the judgment dated 09.02.2012, passed by the learned Additional Sessions Judge, Rawalpindi in case FIR No. 226, dated 13.10.2010, registered under sections 496-A and 376, P.P.C. at Police Station Kotli Sattian, Rawalpindi, whereby he was convicted under section 496-A, P.P.C. and sentenced to seven years (07) years imprisonment with fine of Rs. 30,000/- and in case of non payment of fine to undergo S.I. for four months. He was also convicted under section 376, P.P.C. and sentenced to 10 years with fine of Rs.50,000/-. In default of payment thereof to further undergo S.I. for six months. Benefit of section 382-B, Cr.P.C. was also extended to him.

2. Prosecution story as contained in the FIR (Ex.PA/2) lodged on the complaint (Ex. P/A) of Kamran Ali (PW-1) is that he got married with Asifa Bibi (PW-2) on 25.04.2009 and from the wedlock a baby girl was born. According to the complainant, the marriage went on rocks and Asifa Bibi PW started residing with her parents four months before the occurrence. It is alleged that during this period she established illicit liaison with the appellant and it was on 06.10.2010 at about 1.00 p.m. that she left her parents' house on the pretext of visiting her tailor. It is prosecution case that Asifa Bibi PW was enticed away by the appellant in connivance with his brother Zahid Hussain, sister-in-law Ishrat Bibi alias Nimra Bibi, Kausar Bibi daughter of Muhammad Qader and Naseeb Jan and while leaving she also took away Rs. 80,000/- and gold ornaments weighing 5 tolas.

3. After registration of case, Investigating Officer took investigative steps that included arrest of Zahid Hussain and Naseeb Jan on 15.10.2010. On 16.10.2010 Asifa Bibi herself surfaced, whose statement under Section 161 Cr.P.C was recorded by Muhammad Khan S.I. (PW-7); she was also examined by a Magistrate under Section 164, Cr.P.C. On 19.10.2010 the appellant was arrested. Zahid Hussain and Naseeb Jan co-accused were exonerated and discharged by a Magistrate. Nazam Hussain appellant, Ishrat Bibi alias Nimra Bibi and Kausar Bibi were sent to face trial.

4. Prosecution in order to bring home charge against the appellant, besides relying upon forensic report produced as many as nine witnesses. Mst. Asifa Bibi/Prosecutrix (PW-2) is prosecution star witness; her case in the witness box is that on 06.10.2010 she left her minor daughter in response to a telephone call made by the appellant impersonating himself as her husband. She alleged that she was administered intoxicant through a drink and became unconscious to regain her senses at Karachi in a three storey building where according to her she was ravished. It is further alleged by her that appellant forced her to marry him. It was on her persuasion, according to the Prosecutrix, that appellant accompanied her in a train on way back to Rawalpindi.

5. Confronted with the charge, appellant asserted valid marriage, relying upon affidavit (Exh.D/1) and a marriage certificate which according to the appellant was dishonestly withheld by the Investigating Officer; he appeared as his own witness in disproof of charge within the contemplation of subsection (2) of Section 340 Cr.P.C. Appellant's stand in brief is that he neither enticed away nor abducted Asifa Bibi whom he married with the blessings and approval of her relatives, believing in all bona fide that she was competent to contract marriage.

6. The learned trial Judge acquitted Mst. Ishrat Bibi alias Nimra Bibi and Mst. Kausar Bibi from the charge, however, while believing prosecution evidence qua the appellant convicted and sentenced him as mentioned above.

7. Learned counsel for the appellant contends that on prosecution's own showing Asifa Bibi, Prosecutrix left her parental house on her own while taking away cash and gold ornaments. An illicit intimacy is alleged between the appellant and the Prosecutrix by no other than complainant himself; that appellant, on solemn affirmation pleaded a valid marriage with Asifa Bibi and produced documentary evidence in support thereof and he as such cannot be saddled with consequences of any previous marriage of Asifa Bibi. According to the learned counsel solitary statement of Asifa Bibi (PW-2) cannot sustain the charge.

8. Conversely, learned counsel for the complainant has relied upon the position taken by the appellant during the trial and according to him appellant's admission of a marriage during the subsistence of earlier bond is a circumstance that proves the case to the hilt.

9. I have heard the learned counsel for the parties and gone through the record.

10. Prosecution case set up in Exh.P-A by Kamran Ali complainant PW-1 is diametrically irreconcilable with the position taken by the Prosecutrix. It is prosecution's own case that relations between Asifa Bibi and her husband were strained and she was living in her parents' house for that reason, then it is astonishing to find her leaving home on a telephone call purportedly made by her husband, that too leaving her minor daughter home and without taking her parents into confidence and that she has not even been able to recognize the voice of a person with whom she shared matrimonial intimacy. One would find it really hard to buy the story of her being intoxicated and senseless throughout in her lengthy journey to the shores of the Arabian Sea. Her return journey to Rawalpindi also terminated without raising a voice. Her testimony merits outright rejection. The position taken by the appellant is straightforward and consistent that he had contracted a valid marriage with Asifa Bibi. This he obviously would have done believing her competent to tie a knot with him. The appellant cannot be saddled with any consequence or responsibility if Asifa Bibi concealed her previous status from the appellant who is not expected to take such plea if he knew about the subsistence of some earlier marriage. A person honestly believing himself to be the husband of a woman signatory to a matrimonial bond, in congeniality and harmony cannot be penalized if on account of suppression of some material fact by his better half, marriage turns out to be invalid or irregular. Prosecution has not been able to bring on record even obliquely any circumstance which could remotely suggest conscious knowledge of Prosecutrix's earlier marriage on part of the appellant.

11. For the foregoing reasons, I allow Crl.A. No.170/2012, set aside impugned judgment dated 09.02.2012 passed by the learned Addl. Sessions Judge, Rawalpindi and acquit the appellant from the charges. He is on bail, his sureties stand discharged. There was another error in the impugned judgment and that is omission of the learned trial Judge to mention whether sentences awarded would run concurrently or otherwise; through acceptance of this appeal that too stands rectified. HBT/N-3/L Appeal allowed.