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Criminal Appeals Nos. 176/1, and 214/1 of 1985, decided on 9th February, 1986.

‑‑‑S. 16‑‑Entioiog away‑‑Illicit intercourse‑‑No evidence to suggest, accused K was enticed away by accused Z nor that she was arrested or apprehended alongwith co‑accused Z‑‑Accused Z arrested from place S‑‑Accused K arrested from B from custody of her brother‑‑Medical evidence that accused K 'had been subjected to sexual intercourse in recent past, belied‑‑Accused Z in custody since 20‑8‑1984‑‑Lady accused handed over to her brother since that date‑‑Medical examination after 14 days-‑Medical report, held, would not involve accused Z‑‑Appeal was, therefore, accepted in circumstances.

Mehr Ghulam Ali Mubashar for Appellants.

Shujauddin Qureshi for the State.

Date of hearing: 9th February, 1986.

This order shall also dispose of connected Jail Criminal Appeal No. 214/1 of 1985 and Criminal Appeal No. 176/1, of 1985. The appellants were convicted by the Additional Sessions Judge, Sargodha, vide his order, dated 11‑7‑1985 and sentenced to 5 years' R.I., each, with whipping numbering 10 stripes each and a fine of Rs.2,000 each. In default of payment of fine, they were to suffer 6 months' R.I., each further. They have challenged their conviction and sentences, through the present appeals.

2. The occurrence took place 1 month prior to the lodging of the F.I.R., on the 13th of August, 1984. It was reported by Karam Ali, P.W. 7, husband of appellant Mst. Kaniz Fatima to Shah Nawaz, A.S.I. P.W. 9. He stated that Mst. Kaniz Fatima is his lawfully wedded wife with four children. Zulfiqar Ahmad appellant, who was on visiting terms with the complainant developed illicit relation with her. On account of suspicion the complainant prohibited him from visiting his house. 1 month earlier when the complainant was away to his field the appellant Zulfiqar Ahmad came to his house and enticed away his wife for the purpose of illicit intercourse. On his return from the fields, the complainant searched his wife but failed. He was, however, informed by Muhammad Yar (not produced) and Muhammad Hayat, P.W. 8 that they had seen Mst. Kaniz Fatima boarding a bus with Zulfiqar. The complainant, thereafter, made his efforts to get his wife back but failed. Therefore, he lodged the report.

3. The appellant Zulfiqar was arrested in the area of Police Station, Talhar, District Badin, Sind on the 20th of August, 1984. He was then brought to Bhera on the 1st of September, 1984 by A.S.I. Shah Nawaz on intimation of S.S.P., Badin. According to Shah Nawaz, he also took custody of Mst. Kaniz Fatima from S.S.P., but could not bring her with him as the law and order situation in Sind was not quite conducive. He, therefore, handed her over to her brother Sher Muhammad, who had gone with him, with the undertaking that he will produce her at Bhera. Consequently, she was also arrested on the 3rd of September, 1984 at Bhera and medically examined on the 3rd of September. 1984. The prosecution challaned the case after investigation.

There were 9 witnesses produced in support of the prosecution version. P.W. 1, lady doctor Mrs. Arjamand Bano, who had examined Mst. Kaniz Fatima on the 3rd of September, 1984 found that she was aged 30/32 years with normal built. She had four children with the youngest as 8 years old. She took two vaginal swabs, one internal and one external for despatch to the Chemical Examiner for detection of semen. On report of the Chemical Examiner she found that Mst. Kaniz Fatima had been subjected to sexual intercourse in the recent past. Prior to the above examination Dr. Mumtaz Ahmad Malik P.W. 2 testified about the potency of the appellant Zulfiqar. Shahadat Ali, P.W. 4 had recorded the formal F.I.R. Nazar Hussain, P.W. 5 had kept the vaginal swabs in the 'Malkhana' and subsequently handed them over to Muhammad Yousaf, F.C., P.W.3 for transmission to the Chemical Examiner.

5. Muhammad Nazir, P.W. 6. had taken Mat. Kaniz Fatima to the doctor for medical examination. Karam Ali, P.W. 7 is the complainant and he supported his version as given in the F.I.R. Muhammad Hayat,

P.W. 8 appeared to state that he had seen Mst. Kaniz Fatima with Zulfiqar Ahmad while boarding a bus. Shah Nawaz, A.S.I. P.W.9 had investigated the case. He stated that he went to Sind to get‑ the custody of Zulfiqar Ahmad as well as of Mst. Kaniz Fatima. He brought Zulfiqar with him but handed over Mst. Kaniz Fatima to her brother Sher Muhammad, who brought her at Bhera where she was also arrested. The trial Court accepted the prosecution version and convicted and sentenced the appellants as stated above.

6. It is contended by the learned counsel for the appellant that there is no evidence on the record to show that the present appellant either had enticed away Mst. Kaniz Fatima or she was subjected to illicit intercourse by Zulfiqar Ahmad. According to him, the mere arrest of Zulfiqar from Sind would not mean that he had committed the offence. The learned counsel further urges that as P.W. 9. Shah Nawaz, A.S.I., could produce the documents of custody or arrest of Mst. Kaniz Fatima also from Sind, the commission on his part of produce any such evidence should adversely affect the case of the prosecution.

7. The learned counsel for the State is not in a position to meet any of these objections. Undoubtedly, there is no record Jo suggest that Mst. Kaniz Fatima was enticed away or that she had been arrested or even apprehended alongwith the appellant Zulfiqar. Rather, the evidence on the record is suggestive of the fact it was only Zulfiqar who was arrested from Sind. The document Exh. P.F. is only about his remand and not Mst. Kaniz Fatima. in case Mst. Kaniz Fatima had also been arrested alongwith Zulfiqar by the Sind Police there would certainly be the entire record in support and would have not only taken the remand of Zulfiqar but both. This is, therefore, clear that the Sind Police did not have custody of Mst. Kaniz Fatima.

8. The prosecution has also failed to produce even Sher Muhammad who could say if sister was recovered from Sind and that custody was given to him. The case of Shah Nawaz was that Mst. Kaniz Fatima had been handed over to one Akbar Lumbardar by the Sind Police but he was also not produced. Again even if that be correct Akbar was not placed in a prohibited degree. In any case the report of the lady doctor is that sexual intercourses had been committed in the recent past prior to the above examination. Mst. Kaniz Fatima, on the other hand, is said to have been handed over to Akbar on 20th of August, 1984. She was medically examined on 3rd of September that is about 14 days thereafter. So the report of the lady doctor would not involve the appellant. However, if she was not apprehended or arrested in Sind even then the report of the lady doctor cannot be used against the appellant, who had been in custody since 20th of August, 1984.

9. For the reasons stated above, we find much merit in this appeal. It is, therefore, allowed and conviction and sentences are set aside. The appellants shall be released forthwith if not required in any other case.

S.A. Appeal accepted.

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