' JUSTICE ABDUL HAMEED DOGAR (MEMBER).---By this common judgment, we propose to dispose of Criminal Petitions Nos.5 and 6 of 2002 as they arise out of judgment dated 12-11-2001 passed by learned Federal Shariat Court. Vide Shariat Criminal Petition No,5(5) of 2002, the petitioner/State has challenged the acquittal of respondent Khuda Dad from the charges under sections 11 and 13 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called as 'the Ordinance') whereas vide Shariat Criminal Petition No,6 (S) of 2002, the petitioner/State has challenged the acquittal of Khalid Javed respondent from all the charges.
2. In both petitions, the petitioner seeks leave to appeal.
3. Respondent Khuda Dad had filed Criminal Appeal No,64/I of 2001 wherein he challenged his conviction and sentence. Vide Criminal Appeal No,102/I of 2001, and Criminal Revision No,11/1 of 2001 complainant Amanat Ali had impugned the acquittal of respondentKhalid Javed and sought the enhancement of sentence against respondent Khuda Dad respectively. The learned Federal Shariat Court partly allowed Appeal No,64/I of 2001 and set aside the conviction and sentence of Khuda Dad under sections 11 and 13 of the Ordinance whereas maintained the one under section 16 of the Ordinance. He was also directed to pay a fine of Rs,10,000 or in default to undergo further S.I.
For three months. Benefit of section 382-B, Cr.P.C. Was extended to him towards the computation of sentence. Criminal Appeal No,102/1 of 2001 and Criminal Revision No,11/I of 2001 were, however, dismissed.
4. Precisely, stated the facts leading to the filing of the instant petitions are, that on 20-5-1996 F.I.R.
No,87 of 1996 was lodged under sections 7, 10 and 16 of the Ordinance at the behest of complainant Amanat Ali at Police Station, City Renala .Khurd, Okara, wherein he disclosed that he had four sisters. All the sisters were married. His sister Mst. Rashidan alias Lado on getting annoyed with her husbandused to reside with him since last one year. His mother was doing a business of Tandoor
(oven) where drivers used to come for taking meals. Respondent Khuda Dad and accused Abdul Rahim also used to come to the said Oven. Respondent Khuda Dad being on visiting terms had developed illicit relations with Mst. Rashidan. About 15 to 20 days prior to the lodging of the F.I.R., said Khuda Dad, accused Abdul Rahim and Khalid Javed alongwith other unknown persons came to his house in his absence and abducted Mst. Rashidan on Truck No,GLT-5357 for the purpose of committing Zina with her. P.Ws. Muhammad Hanif and Yaloob Masih saw them taking away the abductee in the said Truck. Respondents kept the complainant on false hopes and agreed to return the abductee in presence of Punchayat but ultimately refused to do so, as such, he lodged the above mentioned case with the police.
5. Accused Abdul Rahim was found innocent during the investigation, as such his name was placed in Column No,2 of the Challan whereas respondents Khuda Dad and Khalid Javed were sent up to face trial before the Court of learned Additional Sessions Judge, Okara, where they pleaded not guilty and claimed trial.
6. The prosecution in order to establish its case examined as many four witnesses. On conclusion of trial, Khalid Javed was acquitted whereas Khuda Dad was convicted as stated above.
7. We have heard Mr. M. Zaman Bhatti, learned Advocate Supreme Court for the petitioner/State and have gone through the record and proceedings of the case in minute particulars.
8. Mr. M. Zaman Bhatti, learned Advocate Supreme Court for the petitioner vehemently contended that the learned Federal Shariat Court has ignored the main aspects of the case of the prosecution and acquitted respondent Khuda Dad under sections 11 and 13 of the Ordinance contrary to the record and without advancing any legal justification. According to him, the factum of abduction of abductee Mst. Rashidan by respondents Khuda Dad and Khalid Javed has been fully proved by producing evidence of P.Ws. Yaqoob Masih and Muhammad Hanif. Her non-recovery further establishes the fact that she was sold by the respondents for the purpose of prostitution was another most important factor, which was not considered by the learned Appellate Court while acquitting the respondents from that charge also. He attacked the judgment of both the Courts below and contended that respondents Khuda Dad and Khalid Javed should have been convicted separately under sections 11 and 13 of the Ordinance and would have been awarded maximum punishment provided therein and by not doing so, the miscarriage of justice has been caused. The reasoning advanced foracquitting respondent Khalid Javed is also arbitrary and capricious in nature thus liable to be set aside.
9. Admittedly, the incident has not been witnessed by complainant Amanat Ali who, according to his own version was sleeping inside the room at the time of abduction of his sister and came to know about the same at 5/6-00 a.m. It was P.Ws. Muhammad Hanif and Yaqoob Masih who appraised him about taking away of the victim by the respondents. The main reason which weighed with the trial Court for acquitting respondent Khalid Javed was the fact that the above mentioned P.Ws., namely, Muhammad Hanif and Yaqoob Masih in their respective statements claimed that he was not known to them prior to the incident. Moreover, respondent Khalid Javed was the resident of Hassanabdal whereas the above witnesses were the resident of Okara and had no occasion to see him prior to the incident. Thus the reasons of his acquittal from all charges do not suffer from any illegality and being based on proper appraisal of evidence are not liable to be interfered with.
' As regards the case against respondent Khuda Dad, it is to be examined in the perspective of the evidence on record. The main evidence against him consists of the ocular version furnished by P.Ws. Muhammad Hanif and Yaqoob Masih at the trial. Both of them are discrepant and have advanced distinct feature of the prosecution case. P.W. Yaqoob Masih in his statement disclosed that on the day of occurrence at about 6-00/6-30 p.m. While he and P.W. Muhammad Hanif were going, they saw respondents Khalid Javed, Khuda Dad and victim Mst. Rashidan standing behind a Truck, firstly in the parking condition and thereafter moving. P.W. Muhammad Hanif stated that on the day ot occurrence, it was morning time, he and P.W. Yaqoob Masih were unloading sand from a Trolley near Railway Lines, Renala Khurd and saw respondents Khuda Dad, Khalid Javed, Abdul Rahim (not sent up) and Mst. Rashidan standing behind the truck who thereafter put her inside the truck. Complainant came there after 20 minutes and was apprised of the above facts. Since both the Courts below have disbelieved their evidence and acquitted the respondents from the charges of abduction, as such, we also do not find any justification to interfere with the same. Simply by seeing the abductee in the company of the respondents would not attract the ingredients of section 11 of the Ordinance. For better appreciation, section 11 of the Ordinance is reproduced herein below: "Section-11. Kidnapping, abducting or inducing women 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."
To be still more clear the ingredients of the word 'Abduction' as defined in section 362, P.P.C. Are also to be examined in the light of the case of the prosecution, which in our opinion, are not attracted, as it is nobody's case that she was abducted on show of force or in any deceitful manner.
11. The prosecution at the time has miserably failed to bring on record any evidence against the respondents about selling of the abductee for the purpose of prostitution, as such, rightly acquitted them from the charges of section 13 of the Ordinance. In this context, the evidence of the abductee Mst. Rashidan was the only relevant testimony which is lacking in this case as the prosecution has failed to recover her.
12. The admission of complainant that respondent Khuda Dad had developed illicit relations with his sister Mst. Rashidan about 2/3 months prior to the incident was found to be the sole reason to convict respondent Khuda Dad under section 16 of the Ordinance which in our opinion seems to be convincing and reasonable.
13. It is well-settled principle of law that criteria to decide the appeal against conviction is quite different from that of appeal against acquittal. The judgment of acquittal can only be interfered with if it is found on the face of it as perverse, arbitrary, capricious or speculative. In our opinion, the impugned judgment does not suffer from any of the above disqualifications, thus the same is accordingly maintained.
14. The petitions being devoid of force are dismissed and leave to appeal refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.