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Criminal Appeal No. 53/L of 1986, decided on 20th October, 1986.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--

--Ss. 10(3) & 11--Forcible abduction- -Abductee allegedly taken from her house by sister of accused at Esha prayer time and thereafter taken away by accused--Inmates of house not trying to find out as to where she had gone--Two maternal-uncles of abductee seeing her going in company of accused and on their query being told about going to shrine- -Abductee not complaining to her uncles about her abduction--Prosecution, held, had failed to prove offence of forcible abduction punishable under-

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--

--Ss. 10(3) &11--Ocular evidence, appreciation of--Occurrence at Esha prayer time--Maternal-uncles of abductee seeing her going in company of accused, soon after occurrence--Witnesses informing complainant, yet F.I.R. lodged after four days--Abductee not recovered from accused but produced by complainant--Maternal-uncle of abductee deposing her recovery by police from Lahore- -Abductee remaining in custody of complainant while recording her statement by Magistrate and medical examination without registering case- -Abductee inheriting property from her father--Complainant a paternal-uncle while accused related to abductee through mother--Semen-stained Shalwar of abductee not secured--Material evidence not supporting abductee's stay--Ocular evidence found contradictory--Solitary statement of abductee about her abduction and Zina-bil-Jabr, held, could not be relied upon and it would not be safe in administration criminal justice to uphold conviction- Acquittal ordered in circumstances.

Waheed-ud-Din Virk for Appellants.

Bashir Beg for the State.

Date of hearing: 20th October, 1986.

KAMAL MUSTAFA BOKHARY, J.-

-Mushtaq Ahmad, Said Muhammad sons and Mst. Bushra daughter, of Khushi Muhammad, residents of Sahiwal, were tried for abduction and Zina-bil-Jabr with Mst. Parveen Akhtar. The Additional Sessions Judge, Pakpattan Sharif, on 13 2-1986, convicted the former two under sections l I and 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced each of them - to undergo seven years' rigorous imprisonment, to whipping numbering ten stripes each and to pay a fine of Rs.3,000 each or in default of its payment to further suffer rigorous imprisonment for six months each on two counts and ordered that their substantive sentences shall run concurrently. Mst. Bushra was acquitted by the same order. Mushtaq Ahmad and Said Muhammad have challenged their convictions and sentences by this appeal.

2. On the statement of Sadaq Ali recorded at the Police Station Malka Hans, F.I.R. was registered on 4-4-1985 at 12-30 noon in respect of an occurrence which had taken place at Eshawela on 30-3-1985 in village Mal District Sahiwal. The first informant Sadaq Ali, P.W. narrated that about 3/4 years earlier the Nikah of his niece, Mst. Perveen Akhtar, had been performed with Khadim Hussain of village Mal but her Rukhsati had not yet taken place. On 30-3-1985 after the Eshawela prayer Mst. Bushra, acquitted accused, took Mst. Parveen Akhtar out of the house. The appellants were present outside the house who abducted her for illicit sexual intercourse. Shah Muhammad and Noor Muhammad sons of Khalil informed him that they had seen Mst. Parveen Akhtar at Bahiwal bridge with the appellants who on their enquiry told them that appellants were going to the shrine of Hazrat Baba Farid Sahib. It was explained that Mst. Parveen Akhtar was searched during all this period but her whereabouts could not be found out.

3. Sadaq Ali P.W. first informant, produced Mst. Parveen Akhtar, fore Saeed Anjum, A.S.I. P.W. on 15-4-1985, when he was present in the Katcheri premises at Pakpattan. Saeed Anjum P.W., got the statement of Mst. Parveen Akhtar recorded by the Magistrate under section 164, P.P.C. and also got her medically examined. He arrested Mushtaq Ahmad appellant, on 23-4-1985 and got him medically examined for potency. He arrested Said Muhammad appellant on I-5-1985 and got him medically examined on the next day. The case was partly investigated by Ghulam Raza, A.S.I., P.W. who inspected the spot and prepared the site plan. He also recorded statements of the witnesses under section 161, Cr.P.C. On completion of investigation the appellants and the acquitted accused were challaned in Court.

4. Lady Dr. Tahira Parveen (P.W.10), Woman Medical Officer of Civil Hospital, Arifwala, deposed that she examined Mst. Parveen Akhtar abductee, on 15-4-1985 at 12-30 noon and found as under:-

The pubic hairs were not stained with semen.

No staining of semen.

Two vaginal swabs were taken.

In cross-examination by the defence she deposgd that Mst. Parveen Akhtar was habitual of sexual intercourse. She handed over the sealed parcel of swabs to the police for Chemical Examiner.

5. At the trial prosecution examined ten witnesses in all. The ocular evidence was provided by Sadaq Ali (P.W.3), Mst. Parveen Akhtar (P.W.4) and Noor Muhammad (P.W.5). Sadaq All narrated the facts as stated in the first information report. He deposed at the trial that Mst. Bushra acquitted accused visited their house and called Mst. Parveen Akhtar outside the house upon which Mst. Parveen Akhtar went out of the house and did not return The witness searched her. Noor Muhammad, P.W. and Shah Muhammad (not examined) met the first informant in his house and told him that they had seen Mst. Parveen Akhtar in the company of the appellants and the acquitted accused near bridge Bahiwal and when asked the accused told them that they were going to the shrine of Baba Farid Sahib. He also deposed that the abductee was returned to him 13 days after the occurrence. Mst. Parveen Akhtar abductee deposed that she went out of her house with Mst. Bushra, the appellant/the accused took her to bridge Bahiwal and on their way P.W. Noor Muhammad and Shah Muhammad met them and on their querry the abductee told them that they were going to shrine of Baba Farid Sahib. She also deposed that the accused took her to Sahiwal and then to Lahore and the appellants kept her in a house in Faisal Town for 13 days. During that period both the appellants had committed Zina-bil-Jabr with her. She told the appellants that she be taken back to her house otherwise she would commit suicide upon which the appellants asked her to assure them on Holy Qura'n that no criminal case will be registered against them and she did so. She also deposed that appellants then restored her to her uncle Sadaq Ali, P.W. Noor Muhammad deposed that he and his brother Shah Muhammad saw the abductee in the company of the accused and on their enquiry they were the accused and the abductee that they were going to the Shrine of Baba Sahib and they informed Muhammad Sadaq P.W. about it. Muhammad Saeed Jaffar (P.W.8) deposed that while posted as Magistrate, Pakpattan he recorded the statement of Mst. Parveen Akhtar under section 164, Cr.P.C. Abdul Rashid (P.W2) Head Constable had registered the F.I.R. Capt. Dr. Muhammad Aslam Babur (P.W.1) and Dr. Muhammad Nasir Dilshad (P.W.9) deposed that they had medically examined the appellants 'and found them fit to perform sexual intercourse. Lady Dr. Tahira Parveen (P.W.10) proved her medico-legal report of the abductee. Ghulam Raza, A.S.I. (P.W.6) and Saeed Anjum, A.S.I., (P.W.7) deposed that they investigated this case.

6. The appellants and their co-accused pleaded not guilty to the charge. The appellants stated that Sadaq Ali P.W. had brought false case against them. According to the appellants, Mst. Parveen Akhtar had filed a suit for dissolution of marriage in which brother of the appellants was to appear as a witness on her behalf. They stated that Mst. Parveen Akhtar left her house with her mother when her uncle Sadaq Ali, pressed them to withdraw the suit. It was also stated that Said Muhammad appellant had litigation with Sadaq Ali, P.W. and were on inimical terms with each other. The appellants got themselves examined under section 340, Cr.P.C. and deposed that they never abducted Mst. Parveen Akhtar nor did they commit rape with her but had been falsely involved on account of enmity with Sadaq Ali, P.W. The appellants examined two witnesses in their defence. Sajawal (D.W.1) deposed that in his presence at Adda Malka Hans Mst. Parveen Akhtar P.W. with her mother and Sadaq Ali P.W. reached there in a bus from Sahiwal and went to the police station where Mst. Parveen Akhtar, P.W. and her mother told the witness that they had not been abducted by the accused but had left their house out of fear of Sadaq Ali P.W., and that the abductee and her mother were taken out of the police station by her uncle Sadaq Ali and her husband l;.,hadim Hussain when they refused to support the prosecution version. Saadat Khan (D.W.2) made a similar statement.

7. The trial Court acquitted Mst. Bushra because the prosecution had failed to prove its case, against her and convicted the appellants on the ocular evidence corroborated by the medical evidence and positive report of the Chemical Examiner that swabs taken from vagina of the abductee were stained with semen.

8. It has been argued on behalf of the appellants that the abduction was not proved on record and that Mst. Parveen Akhtar was not recovered from the appellants. It was further argued that the offence of Zina-bil -Jabr had not been proved against the appellants. It was also submitted that the victim was medically examined in the case after five days of her recovery and she alone deposed that she stayed with the appellants who committed Zina-bil-Jabr with her. It was then submitted that the F.I.R. in this case was registered three days after the occurrence and time was availed of for deliberation and consultation.

9. We have been taken through the evidence and have considered it in the light of above submissions. The prosecution version is that Mst. Bushra called the abductee Mst. Parveen Akhtar upon which she went out of her house and did not return. This happened after the' Eshawela prayer. The inmates of the house did not try to find out where she had gone. Noor Muhammad P.W. and Shah Muhammad saw Mst. Parveen Akhtar P.W. fIA the company of appellants and their sister and on their querry told them that they were going to the shrine of Baba Farid Sahib. No complaint was made by Mst. Parveen Akhtar, P.W. at that time. Noor Muhammad P.W. and Shah Muhammad (not examined) were closely related to Mst. Parveen Akhtar, being her maternal-uncles. If she was being forcibly taken away there was no reason why she should not make an attempt to inform her maternal-uncles. In the circumstance of the present case we find that prosecution has failed to prove the offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against the appellants.

10. The occurrence took place after Eshawela prayers on 30- 3- 1986. Noor Muhammad, P.W. and Shah Muhammad (not examined) maternal -uncles of the abductee saw her in the company of the appellant soon after she left the house and informed Sadaq Ali, P.W. There was no point left in carrying out further search and matter should have been immediately reported to the police but we find that the first information report was got registered by Sadaq Ali four days after the occurrence, on 4-4-1985 at 12 30 noon. We find force m the submissions of the learned counsel that this time was availed of for deliberation and consultation. Mst. Parveen Akhtar abductee was not recovered from the appellants. Sadaq Ali, P.W. deposed that she was restored to him by the appellants at Adda Malka Hans. Noor Muhammad P.W. maternal-uncle of abductee, deposed in cross examination that the police had brought Mst. Parveen Akhtar and handed her over to Sadaq Ali P.W. at the evening time and she was recovered by the police at Lahore. The ocular evidence is contradictory. In the circumstances solitary statement of the abductee'on the point of her abduction and Zina-bil-Jabr cannot be relied upon. The appellants are B entitled to the benefit of doubt.

11. It is in evidence that the abductee inherited property after the death of her father. Sadaq Ali, P.W. is her paternal-uncle and the appellants are related to her through her mother. According to Sadaq Ali P.W., and the abductee she was restored by the appellants while Noor Muhammad P.W. deposed that the police recovered her from Lahore and restored her to Sadaq Ali. The matter was not reported to the police for about four days. Mst. Parveen Akhtar abductee cannot be believed on the point of abduction when the trial Court has, acquitted Mst. Bushra. The police did not register the case but sent her to the Magistrate for recording her statement and for her medical examination during which period she remained with the complainant. The material evidence does not support her. Her semen stained Shalwar was not secured. On the evidence and in the circumstances of the case we do not consider it safe in the administration of criminal justice to uphold the conviction of appellants.

12. For the above reasons we allow the appeal, set aside conviction and sentences of the appellants. By a short order we have already directed that the appellants shall be set at liberty forthwith if not required in any other case.

S.A./333/F.Sh.C Appeal allowed.

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