' CH. EJAZ YOUSAF ACTG. C.J.--- This appeal is directed against the judgment, dated 17-4-2002 passed by the learned Additional Sessions Judge, Phalia District Mandi Bahauddin whereby all the four appellants namely, Qaiser Iqbal son of Muhammad Aslam, Muhammad Riaz alias Muhammad Aslam son of Ghulam Haider, Ashraf son of Ghulam Qadir and Sajid Abbas son of Muhammad Aslam, were convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") and sentenced to 12 years' R.I. Each along with a fine of Rs,15,000 each or in default thereof to further undergo S.I. For six months each. Benefit of section 382-B, Cr.P.C. Was however, extended to the appellants.
2. Briefly stated, the prosecution case as gathered from the record, is that report was lodged by one Mutalli Khan with Police Station Qadirabad District Mandi Bahauddin wherein, it was stated that the complainant was residing at Chook Kalan. His unmarried maternalgrand-daughter namely Mst. Fozia had come to see him. On 25-9-1999 at about 9-00 p.m. She, in order to answer the call of nature, went out of his house but did not return. After waiting for some time, the complainant along with Sikandar son of Inayat went in search of her and in the process, near the passage towards Qadirabad situated on the eastern side of the village came across Muhammad Yar son of Ahmed Khan and Muhammad son of Mada who disclosed that they had seen Mst. Fozia going in the company of Qaiser Iqbal, Sajid Abbas both sons of Muhammad Aslam, Muhammad Ashraf son of Ghulam Qadir and Muhammad Azam son of Ghulam Haider towards Qadirabad. It was alleged that since Mst. Fozia was abducted by the afore named accused persons for the purpose of Zina, therefore, proceedings under the law be initiated, in order to bring home guilt of the accused persons. On the stated allegation formal F.I.R. Bearing No,572 dated 26-9-1999 was registered under section 11 of "the Ordinance" at the said police station, and investigation was carried out in pursuance thereof. On the completion of investigation the accused persons were challaned to the Court for trial.
3. Charge was accordingly framed against the accused persons to which they pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the appellants produced seven witnesses, in all. P.W.1 Muttali is the complainant. He, at the trial, reiterated the version contained in the F.I.R. P.W.2 Mst. Fozia is the abductee. She deposed that as, she, on the day of occurrence, in order to ease herself, went out of her house the accused persons caught hold of her and dragged her to a house situated at about two acres from the house of the complainant. After confining her in a room, Qaiser accused slept and she having found an opportunity returned to her house. In the course of her cross-examination she admitted the suggestion as correct that she had appeared before a Magistrate for the purpose of recording her 164, Cr.P.C. Statement and that she had also nominated Azam, Ashraf and Sajid accused persons therein. P.W.3 Sikandar Abbas is cousin of the abductee. He while corroborating the statement of the complainant deposed that as they went in search of the abductee they came across P.Ws. Muhammad Yar and Muhammad who told them that they had seen Mst. Fozia going in the company of Qaisar, Sajid, Ashraf and Azam accused persons towards Qadirabad. In the, course of his cross-examination he admitted the suggestion as correct that there was enmity between the parties over "water" in the street. P.W.4 Muhammad Yar had, on the day of occurrence, allegedly seen Mst. Fozia in the company of the accused persons. In the course of his cross- examination he too, admitted that there was enmity between the parties over the problem of water and a Howell. P.W.5 Safdar Ali, S.-I. Is the Investigating Officer of the case. After giving detailed account of his investigation the witness in the course of his cross-examination stated that as a result of investigation he had declared Sajid, Ashraf and Muhammad Azam accused persons as innocent. He further stated that he had recorded statement of the abductee on 5-10-1999 wherein she had stated that the accused persons did not commit illicit intercourse with her. However, had confined her in a house situated 3/4 acres from the place of occurrence. P.W.6 Mubashar Maqsood, Moharrir Head Constable had on the statement of the complainant registered formal F.I.R. Exh.P.A.
P.W.7 Dr. Muhammad Akram had on 7-10-1999 examined the appellant qua the potency test. He produced in Court the MLR, Exh. P . C .
5. On the conclusion of the prosecution evidence the accused persons were examined under section 342, Cr.P.C. In their above statements all the accused persons denied the charge and pleaded innocence. In answer to the question as to why the case against them? All the accused persons took almost similar stand that there was a dispute between the parties and they were implicated falsely on account of political rivalry.
6. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the appellants and sentenced them to the punishments as mentioned in the opening para. Hereof.
7. We have heard Mr. M. Saleheen Mughal, Advocate learned counsel for the appellants, Mr. Ejaz Anwar, Advocate, learned counsel for the complainant, Mr. Muhammad Sharif Janjua, Advocate, learned counsel for the State and have also perused the entire record with their assistance.
8.. Mr. M. Saleheen Mughal, Advocate, learned counsel for the appellants has submitted that the prosecution has been unable to prove its case against the appellants especially, Muhammad Riaz, Ashraf and Sajid whose participation in the crime was highly doubtful because in her 164, Cr.P.C.
Statement Mst. Fozia had neither given their names nor there was evidence that they were present at the place of occurrence. He added that 164, Cr.P.C. Statement of the abductee not only contradicts the prosecution version qua participation of the accused persons namely Sajid, Azam and Ashraf in the crime but belies the stand taken by P.W.4 Muhammad Yar as well, that he had seen Mst. Fozia going in the company of the afore-named accused persons that against appellant Qaiser Abbas too, a case under section 11 of the Ordinance was not made out as none of the prosecution witnesses had charged him for kidnapping the victim "for the purpose of Zina". He maintained that it was a simple case of "confinement". Alternatively, it was argued that since appellant Qaiser Abbas too, was a raw youth and his age at time of commission of the offence was about 20 years therefore, the possibility that he had committed the offence due to juvenile delinquency, could not have been ruled out and therefore, he may be given a chance to mend his ways by taking a lenient view in the matter of his\sentence.
9. Mr. Ejaz Anwar, Advocate, learned counsel for the complainant has submitted; that overwhelming evidence was available to substantiate the charge; that the F.I.R. Was lodged without much delay and all the accused persons were nominated therein; that though enmity was pleaded between the parties but it was not substantiated through evidence by the defence; that the accused persons were falsely involved in the case on account thereof. He, however, having been questioned candidly conceded that in her statement recorded under section 164, Cr.P.C. Mst.
Fozia had not named any of the accused persons except Qaiser Iqbal and against him too, there was no allegation of Zina or attempt to commit Zina.
10. Mr. Muhammad Sharif Janjua, Advocate learned counsel appearing for the State has submitted that so far as participation of accused persons Muhammad Riaz, Ashraf and Sajid Abbas is concerned it was doubtful because they were not at the very outset, named by Mst. Fozia in her statement recorded under section 164, Cr.P.C. He further submitted that offence under section 11 of the Ordinance against Qaisar Iqbal too, was not made out because neither there was any allegation that he had taken the victim along with him for the purpose of Zina nor it was alleged that she was confined in the house for the said purpose. He submitted that in the circumstances a case under section 365, P.P.C. Was made out.
11. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the record minutely. Though in the F.I.R. It has been alleged that four persons had dragged away the abductee and confined her in a house yet, the fact remains that in Exh.D.A. i,e, 164, Cr.P.C. Statement of the abductee neither she had nominated Muhammad Riaz, Ashraf and Sajid Abbas accused persons nor any indication, even remote, was there that they were present at the time of occurrence and had participated in the crime. Thus, the stand taken by her, in her above statement, not only materially contradicted the prosecution version qua participation of accused persons namely, Muhammad Riaz, Ashraf and Sajid Abbas, in the crime; but it belied the stand taken by the P.Ws. Especially, the complainant, P.W.3 and P.W.4, as well. The Investigating Officer too, has confirmed that in her above statement Mst. Fozia had not given the names of the afore-named accused persons and, therefore, he i,e, the Investigating Officer had declared them innocent. The fact cannot be lost sight of that both, the complainant, as well as P.W.3 have no first hand knowledge of the incident and they have primarily relied on the statement of P.W.4 Muhammad Yar. Since no evidence to corroborate the statement of P.W.4 Muhammad Yar, on record, is available, therefore, in our view, it was not safe for the learned trial Judge to base conviction on his statement especially, when it was materially contradicted by Mst.
Fozia herself, through Exh.D.A.
12. Adverting to the next contention of the learned counsel for the appellants that against Qaiser Iqbal appellant, a case under section 11 of the Ordinance" was not made out because there was no allegation of Zina or attempt to commit Zina against him and the instant case was, at the most covered by section 365, P.P.C. We may point out here that before proceeding further we deem it appropriate to have a glance at section 11 of the Ordinance which reads as follows:-- "Kidnapping, abducting or inducing woman to compel for marriage, etc.--- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in the Pakistan Penal Code, or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
' A bare perusal of the above provision leads to the inference that section 11 of "the Ordinance" would be attracted only if somebody kidnaps or abducts any woman for the purpose that she may be compelled, or knowing it to be likely that she would be compelled to marry any person against her will or that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she would be forced or seduced to illicit intercourse. Not a single word was uttered by Mst. Fozia that she was taken away by the accused persons for the purpose of Zina or was compelled to marry someone and it was the ultimate purpose. Thus, we see force in the contention of the learned counsel for the appellants that Qaiser Iqbal appellant could not have been convicted under section 11 of the Ordinance. However, on the basis of evidence on record, it can be safely concluded that his case was fully covered by section 365, P.P.C. Which lays that whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Thus, contention raised by the learned counsel for the appellant, in this regard, has force.
13. So far as participation of appellant Qaiser Iqbal in the crime is concerned it may be pointed out here that Mst. Fozia, the abductee, has not only charged him for the commission of offence but at the trial, has given a coherent and rational account thereof. Her statement is not only consistent with the prosecution version but is in line and harmonious with her earlier statements recorded under section 161 as well as 164, Cr.P.C. Her testimony finds support from the other evidence as well and appears to be trustworthy qua the above named appellant. The fact cannot be lost sight of that she was subjected to lengthy cross-examination but nothing favorable to the defence and damaging to the prosecution was elicited from her. Further, neither any enmity was alleged nor it was pleaded that she had any motive to falsely implicate the accused, therefore, in our view, it was rightly believed by the learned trial Judge in view of the fact that defence plea regarding hostility between the parties over "water" or "Haveli" appeared to be sham.
14. The upshot of the above discussion is that the conviction and sentences recorded against appellants, Muhammad Riaz alias Muhammad Azam son of Ghulam Muhammad, Ashraf son of Ghulam Haider and Sajid son of Muhammad Aslam, under section 11 of "the Ordinance" are D set aside and they are acquitted of the charge for which they were convicted and sentenced by the learned Additional Sessions Judge, Mandi Bahauddin vide judgment dated 17th April, 2002. They shall be set at liberty forthwith if not required in any other case. Conviction recorded against appellant, Qaiser Iqbal son of Muhammad Aslam, is maintained. However, it is altered from under section 11 of "the Ordinance" to that of under section 365, P.P.C. And he is sentenced to undergo six years' R.I. Alongwith a fine of Rs,10,000 or in default thereof to further undergo three months' S.I. The benefit extended to him by the learned trial Judge under section 382-B, Cr.P.C. Shall remain intact.
' There are the reasons for our short order of the even date. accordingly.