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Criminal Appeal No.30/K of 1984, decided on 19th November1984.

---S.10(2)--Evidence of accomplice without substantial corroboration, its value--Corroboration of--Mother of abductee informing complainant (her son) that the girl was missing while younger brother of abductee telling complainant of her forcible abduction by accused in a taxi--Many people having gathered there but none of them noted the number of taxi nor reported the matter to Police--F.I.R. not making out case of forcible abduction--Abductee alleging to have been previously married--Mother of abductee categorically contradicting her by stating her to be unmarried--Medical Officer not examined at trial and no explanation furnished for such failure--Trial Court disbelieving prosecution version of forcible abduction found it a case of simple Zina with consent--Accused alleging to have lawfully married the abductee--Copy of Nikahnama produced--Statement of abductee, held, would be that of accomplice which could not be acted upon without substantial corroboration lacking in the case--Accused acquitted by extending benefit of doubt in circumstances.

Imran Ahmad for Appellant.

Rashid Tariq for the State.

Date of hearing: 19th November, 1984.

Fayyaz Ahmad son of Ghulam Hussain resident of D-19 Gulshan-e-Iqbal, Karachi was put in dock to face charge under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He was tried by the IXth Additional Sessions Judge, Karachi who vide his Judgment dated 29-7-1984 found him guilty thereunder and sentenced him to 3 years' R.I., whipping numbering 10 stripes and to pay a fine of Rs.1,000 or in default to further suffer rigorous imprisonment for a period of three months. By filing present appeal he has assailed his conviction and sentence.

2. The case against the appellant was registered at the instance of Rasool Bux the brother of Mst. Shamim abductee at North Nazimabad Police Station on 9-10-1980. It is averred in First Information Report that Mst.Shamim aged 15 years lived with him in a Hut, near Railway Station Block-B, North Nazimabad, Karachi. Appellant Fayyaz Ahmad also lived in the neighbourhood of the complainant. On 9-10-1980 when the first informant reached his house at 6.00 p. m. he was his mother that Mst.Shamim was missing. The complainant started search for Mst.Shamim during which Muhammad Bux and Manzoor the younger brothers of the complainant informed him that appellant was seen taking away Mst.Shamim in a Taxi the same day lodged a o t 10.00 a.m. Accordingly the First Information Report was for illicit 8. 30 p. m. implicating the appellant for abducting Mst.Shamim purpose. On 21-12-1980 Imam Bux A.S.I. recovered Mst.Shamim from House No.D-80, Gulshan-e-Iqbal, Karachi. He got medically examined both the appellant and the abductee Mst. Shamim. The Medical officer found Mst.Shamim to be 17/18 years old and she was found pregnant. Her statement was recorded under Section 164 Cr.P.C. in the presence of the accused. At the trial in all five witnesses were examined by the prosecution to prove its case. The appellant denied the charge and examined two witnesses in defence to establish that Mst. Shamim was not married prior to the occurrence. Apart from the Investigating Officer the other four witnesses are the alleged abductee Mst.Shamim, her brothers Rasool Bux the first informant and Manzoor and mother Mst. Zauhara Mai. From the trend of their statements it can be gathered that they tried to make out a case of forcible abduction which is not in line with the first information report. Manzoor (P.W.2) brother of Mst.Shamim stated at (tie trial that on the day of occurrence at about 7.30 a.m. he went out of the house in order to urinate when he found the appellant forcibly taking away his sister in a taxi. He raised alarm on which many persons of the locality came out but the accused succeeded in taking away his sister. When questioned by the defence he stated that all the persons of the locality were illiterate therefore, no one noted the number o the taxi. Neither he nor any one went to lodge the report. Ntst. Shamim's version at the trial was that she and her minor brother were presen in a Hut, when the accused arrived there. He gave her something t smell as a-result she became unconscious. She gained senses at Sukku Bus Stop. Accused then took her to village Mehrab near Dera Nawab. She was confined in a room and no body was allowed to meet her. The accused asked her to marry him but she refused to oblige him in the absence of her mother and brothers. From the village the accused again brought her back to Karachi and kept her in a house in Gulshan-e-Iqbal from where she was recovered by the police.

3. According to the statement of Rasool Bux complainant, hiss mother Mst.Zauhara Mai informed him that accused forcibly abducted Mst.Shamim. But strangely enough the forcible abduction of Mst. Shamim is omitted in the First Information Report. Mst. Shamim the alleged abductee in her statement in Court stated that at the time of incident she was legally-wedded wife of one Allah Diwaya but her being married at the time of abduction is denied by Zauhara Mai (P. W.3) her mother. In examination-in-chief she categorically stated that her daughter, was unmarried. Imam Bux Sub-Inspector Police on 21-12-1980 arrested the accused and recovered Mst. Shamim from House No.D-80, Gulshan-I e-Iqbal, Karachi. Both these were got medically examined. The reports of the Doctors were got exhibited in his statement which is a novel procedure. None of the medical officer was examined at the trial an no explanation has been furnished for not doing so.

4. The learned trial Judge was impressed by the fact that at the time of occurrence Mst. Shaminl was the wife of one Allah Diwaya the knowledge about which could not have escaped the notice of the; accused who was living in the neighbourhood. It appears that it was' not brought to the notice of the learned trial Judge that according to the positive assertion of Mst.Zauhara Mai, the mother of Mst. Shamim, she was unmarried. No one could be a better person to know about the marriage than the mother. The learned trial Judge did not believe the prosecution version about forcible abduction, and held it to be a case of simple zina with consent. Such being the case, the statement of Mst. Shamim was that of an accomplice and could not be acted upon without substantial corroboration which is lacking in this case. The plea of the accused throughout was that he had legally--wedded Mst. Shamim by performing nikah, a photostat copy of which was produced in defence. All the facts and circumstances of the case taken into consideration render the prosecution case doubtful. Extending the benefit of the same to the accused appellant, I accept the appeal and set aside his conviction and sentence, and acquit him of the charge. He shall be released forthwith if not required in any other case.

S. A. /336/ F.Sh.C Appeal accepted.

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