' S.A. MANAN, J.--- This judgment will dispose of three Criminal Appeals i,e, Criminal Appeal No,94/L of 2003 filed by Muhammad Asif, No,107/L of 2003 filed by Amar Masih and No,111/L of 2003 filed by Tanvir Masih, as these arise out of a common judgment, dated 5-3-2003 of the Additional Sessions Judge, Gujranwala whereby he convicted all the appellants under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to ten years' R.I. Each with fine of Rs,50,000 each and in default to further undergo two years' R.I. Each.
' All the appellants/accused have been acquitted from the charge under section 11 of the Ordinance with a positive finding of the trial Court that the offence under this section has not been established against them beyond any shadow of reasonable doubt.
2. Revision Petition No,37/L of 2003 has been filed by the alleged victim Mst. Saira Bibi for enhancement of the sentences awarded to the aforementioned three appellants.
3. Briefly stated at the instance of one Khalid Javed, F.I.R. No, 14 of 2000 dated 13-1-2002 was registered at Police Station City Kamoke, District Gujranwala with the allegations that his daughter Mst. Saira Bibi, aged about 16/17 years was a student of second year in the Government Girls College, Kamoke. That his wife Mst. Shaheen Akhtar used to take the alleged victim to the college every day and would bring her back to his house in the evening, that on 10-1-2002 his wife dropped the victim in the college at about 9-00 a.m. But when his wife went to the college to bring the victim back at about 2-00 p.m. The latter was missing, that his wife informed this fact to him on which he started searching the victim in Kamoke. There he met Jamshed Nasir (nephew of the complainant), Tanvir son of Naseer Ahmad and Liaqat Ali son of Abdul Ghani with information from them that at about 11-00 a.m. The victim was seen by them going towards Gujranwala on a Motorcycle No,4750/GAM with Asif son of Rehmat Ali and Amar Masih son of Arif Masih. According to the F.I.R. The complainant accompanied Muhammad Ashraf son of Fateh Ali and Ch. Bashir Ahmad son of Said Muhammad and proceeded to contact Muhammad Asif accused for return of the victim but this was refused. It is specifically in the F.I.R. That Asif and Amar Masih abducted Mst.
Saira Bibi for the purpose of Zina. The complainant further requested for legal proceedings and for recovery of the victim.
4. According to the contents of the F.I.R., the occurrence took place on 10-1-2002 at about 11-00 a.m.
While the F.I.R. Was registered on 13-1-2002 at about 10-00 p.m.
5. On 29-5-2002 the trial Court framed the charge against Muhammad Asif and Amar Masih under section 11/19 and also section 10(4) of the Ordinance. Tanvir Masih, accused was charged under section 10(3) of the Ordinance. All the appellants/accused pleaded not guilty and claimed trial.
6. In order to prove the allegations the prosecution examined P.W.2 Khalid Javed complainant, P.W.3 Mst. Saira Bibi alleged victim, P.W.4 Jamshaid Nasir, P.W.9 Lady Dr. Nasreen Akhtar who medically examined the victim and P.W.11 Muhammad Zafar Ullah, Investigating Officer. Other witnesses are formal.
7. It is noteworthy that Mst. Shaheen Akhtar, step-mother of the victim did not make any statement before the trial Court nor she appeared before the Investigating Officer, which seems to be a mystery. She was very important witness in the case, which is a lacuna in the case of the prosecution.
8. P.W.3 Mst. Saira Bibi, alleged victim made her detailed statement before the trial Court and was subjected to lengthy cross-examination on behalf of all the accused persons.
' She deposed that on 10th of January, 2002 she along with her mother was going to attend the college situated at Kamoke and after crossing the road when she reached at the gate of the college she saw Amar Masih and Muhammad Asif accused standing there. These accused invited her to sit with them on the motorcycle but she refused. Muhammad Asif, accused was holding a pistol and threatened her that in case of refusal she would be shot and due to fear she sat with them, thereafter, the accused took her at Lady Park, Kamoke and again they .Threatened to kill her in case of any alarm, thereafter, the accused took her towards Gujranwala and near Shell Petrol Pump at Kamoke the accused met with an accident and she was slightly injured. She was taken to the hospital but not produced before any doctor, thereafter; the accused brought her to Gujranwala bus stop. She further deposed that accused Asif, on pistol point, along with other accused Amar Masih forcibly got boarded her in a bus and took her to Mayo Hospital, Lahore. She was kept by the accused in the quarter of their friend and both the accused committed Zina-bil- Jabr with her on pistol point. She further deposed that after two days both the accused again brought her to Gujranwala in Gulshan Park and again threatened her to keep silent otherwise she would be shot. She further deposed that Muhammad Asif accused delivered his pistol to Amar Masih accused and asked him that the victim should be kept somewhere, whereupon Amar Masih accused took her in the house of his friend namely Tanvir Masih, where the said accused person also committed Zina-bil-Jabr. Thereafter, during night time Tanvir Masih accused expelled her from his house and she reached at Khiali Bypass while sitting in a Chand Ghari. According to her, at Khiali Bypass a man and a woman met her and she narrated the whole story to them and requested for help. The said man and woman brought her in the house of her Tayazad situated at Jandiala Baghwala. From this place she was recovered by the police, party. According to her, the Thanedar brought her firstly at Wazirabad hospital and then at Kamoke hospital, where she was medically examined.
' In cross-examination, the victim was confronted with her statement Exh.D.A. Made before the police, where the facts of threats and shooting have not been mentioned. She also did not make any statement before the police that Muhammad Asif accused had handed over the pistol to Amar Masih. She was also confronted with her statement Exh.D.A. That during night time Tanvir Masih accused had expelled her from his house.
' She deposed about her marriage on 3rd March, 2002 and stated that on the day of occurrence she did not enter inside the college. She further stated about her abduction from a distance of about 200 yards away from the college gate. She further stated that she got boarded on the motorcycle within about five minutes and during this time she did not raise any alarm. According to her, she remained at the park for about 45 minutes. She deposed that during the time she was in the park the accused have been threatened her that in case of any alarm she would be shot. It is deposed by her that when she attended Kamoke Hospital, no one was present there. She further stated that on their way from Kamoke to Gujranwala the roads were busy and the people were passing on the roads. She deposed that the bus, wherein she was boarded, was containing other passengers but she did not raise any alarm at the Adda. She remained at Gulshan Park, Gujranwala for about half an hour. According to her, she was brought to the house of Tanvir Masih.
Family members of this accused were residing in this house. According to her, after she was expelled from the house of Tanvir Masih, she remained in the house of Mst. Asia Bibi and Rasheed for two days. According to her, on the first day she narrated the whole story to them. She volunteered that prior to her recovery she remained in the above said house. She admitted that from Gujranwala to Lahore she travelled in a Toyota van and there was so much rush at the Adda and about twenty passengers were boarded in the van. She denied her affairs with Amar Shahzad accused and also denied writing letters to him. She also denied marrying Amar Masih, if he would embrace Islam.
9. The learned trial Court reproduced several events regarding to her travelling from one place to other at the instance of accused persons and this is vide para.24 of the impugned judgment.
10. The trial Court, after enumerating the various events of abduction, came to a positive conclusion that from these facts and circumstances it is clear that Mst. Saira Bibi was a consenting party to the acts committed with her because otherwise sufficient opportunities were available to her to raise alarm and attract the nearby people for her rescue, which she did not opt to do so. In other words the finding of the trial Court is that the victim accompanied the two accused Asif and Amar Masih of her own free-will and accord. In these circumstances, the charge of abduction, according to the trial Court, was not proved and as such the accused were convicted and sentenced under section 10(2) of the Ordinance for ten years' R.I. Each.
11. The trial Court, however, failed to notice that after the aforementioned facts and circumstances of travelling with the accused persons on 10th of January, 2002, the victim was recovered by the police from a place namely Jandiala Baghwala and thereafter she had no contact with any of the accused. This clearly means that from 10th or 13th January, 2002 she was moving of her own. The most important aspect of the case is that there is not an iota of evidence to believe that the victim was recovered from anyone of the accused.
' The trial Court only relied upon the statement of the victim, which according to me, is not trustworthy. The Investigating Officer also could not find out the whereabouts of the driver of the Chand Ghari, which was allegedly arranged by the accused Tanvir Masih, who allegedly expelled the victim from his house.
12. The Investigating Officer P.W.11 deposed that he inspected the spot on 14-1-2002 and prepared a rough site plan. He arrested the accused Muhammad Asif and Amar Masih on 18-1-2002. According to him, the abductee was recovered from the area of Jandiala Baghwala. He only stated that the abductee was recovered from a place, with which no accused had any concern and it as the complainant party, who informed the presence of the abductee at the aforementioned place. He further stated that the certain persons were joined the investigation and they replied that the abductee herself came to their house about two days ago. He further investigated that Mst. Asia and her husband were not the relatives of Mst. Saira Bibi, alleged abductee and that no independent person appeared before him. He further stated that during his investigation he did not record the statement of the mother of the victim as was not considered necessary. He also deposed that it is correct that the motorcycle (Exh.P.1) was neither recovered from Asif nor from Amar Masih accused. He also found in the positive that during investigation it came to his knowledge that the victim was literate and had intimacy with Amar Masih accused prior to the instant occurrence. It is also stated by him that during his investigation, written letters of Mst. Saira Bibi in favor of Amar accused were produced before him. According to his investigation, regarding affair of Mst. Saira Bibi with Amar Masih, both the family members were fully aware to this situation.
He further testified as correct that during the investigation Asif accused was not armed with pistol and that Mst. Saira Bibi was willing to marry with Amar accused if he embraced Islam. He did not visit the house of Tanvir Masih where the latter committed Zina-bil-Jabr with the victim. He also deposed to have searched the Chand Ghari wherein Mst. Saira Bibi was transported from the house of Tanvir Masih to Khiali Chowk but could not do so due to non-furnishing of complete particulars by the complainant party.
13. From the investigation conducted by P.W.11 it is crystal clear that there was no pistol with Asif accused, that there was no proof regarding transportation of the victim in Chand Ghari, that the parents of the victim and that of Amar Masih knew about the love affair between the victim and the aforementioned accused, and that the motorcycle, on which the victim was alleged to have been abducted, did not belong to anyone of the accused rather it belongs to one Ihsan Ullah, who appeared before the Investigating Officer and handed over the motorcycle on 25-1-2002 to the police. This is vide Exh.P.G. Dated 25-1-2002.
14. Taking into consideration the statement of the victim and the Investigation conducted by P.W.11 and also the findings of the trial Court, there is no doubt in my mind that no abduction has taken place as alleged by the victim. The F.T.R. Was recorded at the instance of the father of the alleged victim on 13-1-2002 while the occurrence took place on 10-1-2002 and no reasonable explanation has been given as to the belated F.I.R. Normally the delay in such-like cases is not material but this is one of the cases where the delay must have been explained.
15. The statement of the victim is wholly contradicted to the contents of the F.I.R. Recorded at the instance of the father of the victim. The deposition of the victim regarding abduction is absolutely different from the contents of the F.I.R. According to the victim the alleged occurrence had taken place before she entered into the college for attending her studies while in the F.I.R. It is clearly stated that the abduction took place at about 11-00 a.m. When she was returning from the college premises. It is also in the F.I.R. That the mother of the victim has left the victim at the college and if any occurrence had taken place at that time the mother of the victim was there and she could explain the relevant facts. It is noteworthy that at the time of abduction in the morning nobody has seen the occurrence and I am convinced that no abduction as stated by the victim has taken place. The statement of the victim regarding occurrence is directly in conflict with the facts stated in the F.I.R. To repeat that the mother of the victim dropped her at the college and if there was any abduction at that time she could have certainly reported the matter to the police but this has not happened in the present case.
16. Several letters have been placed with the police and if one reads it is manifestly clear that the victim was having strong intimacy with the accused Amar Masih and in this way there was no question of any abduction, whatsoever, in the present case. In one of the letters the victim has stated that she belongs to Amar Masih accused come what may and that she is not afraid of death and she wants to marry her at all cost in case accused Amar Masih embraced Islam.
Although these letters have been denied by the victim and it is not possible to further comments on so-called letters, particularly when these letters were not exhibited by the trial Court, which was a legal mistake. As the said letters are placed before the Investigating Officer, it is enough to comment on this to the extent as above.
17. During investigation the pistol has not been recovered from Asif accused nor any motorcycle has been recovered from anyone of the accused and this falsifies the whole case of the prosecution. The trial Court has convicted and sentenced the accused persons only on the statement of the victim, which as already stated, is not convincing, trustworthy and confidence- inspiring. It is also on the record that Amar Masih is residing near the house of the victim.
18. After 10th or 13th January, 2002 the victim was moving of her own and she was recovered from the area Jandiala Baghwala and not from anyone of the accused, therefore, there was no occasion for anyone of the accused to commit Zina and charge under section 10(2) of the Ordinance, according to me, is not proved after considering the entire evidence on the record. Even the trial Court has held that the element of abduction is absolutely missing in this case.
19. It is in the F.I.R. That father of the victim was informed by three persons namely Jamshaid Nasir P.W.4 and two others that they saw the victim going with the accused persons Asif and Amar Masih. To this extent, only Jamshaid Nasir P.W.4 was produced but he is the nephew of the complainant as he has stated in his statement.
20. The F.I.R. Was recorded at the instance of P.W.2 father of the victim, who has not seen the occurrence but only relied upon the oral statement of his wife.
21. It is also noteworthy that all the three persons, who informed the complainant having seen the victim going with Asif and Amar Masih accused, have not been produced except P.W.4, nephew of the complainant. The other two persons have been given up and, therefore, their evidence has not been recorded. No reliance, therefore, in this particular case, can be made on the statement of P.W.4, who is the relative of the complainant. The presence of the three persons (one P.W.4 and other two given up P.Ws.) did not justify as to what they were doing at the relevant place. Therefore, P.W.4, in any case, seems to be a chance witness, whose statement cannot be relied upon while convicting and sentencing the accused persons.
22. Amar Masih accused while recording his statement under section 342, Cr.P.C. Denied the prosecution version and evidence against him. He pleaded that he was falsely implicated in the case. According to him, the victim was used to write him love letters and used to tease him through telephonic messages for getting his love. She often coerced him to change his religion and become a Muslim, so that marriage should take place but he always refused this.
23. From the above resume, it is made clear that the story of abduction is a lie and no one has seen anyone of the accused persons to commit Zina with the victim.
24. It is stated above that the victim was recovered by the police from the area of Jandiala Baghwala and not from anyone of the accused persons and this was round about 10th or 13th January, 2002. The abductee was examined by the lady doctor P.W.9 on 21st of January, 2002. At no stage it is proved that anyone of the accused had any contact with the victim, whose statement, I have already commented, is not of any confidence-inspiring, therefore, the report of the Chemical Examiner on the basis of the, swa bs sent to him in pursuance of medical examination on 21st January, 2002 cannot be a conclusive proof unless there was other evidence corroborating the analysis result of the Chemical Examiner. As already stated, the victim was going of her own after 10th or 13th January, 2002 and none of the accused had any physical contact with the victim.
25. One of the accused Tanvir Masih was not nominated in the F.I.R. And it was only the statement of the victim that she introduced him in the case stating that she was handed over to Tanvir Masih, who also committed Zina-bil-Jabr with her.
26. Accused Asif in his statement under section 342, Cr.P.C. Denied the version and evidence of the prosecution with a plea that he was innocent. He further stated in answer to question No,9 that the motorcycle was obtained by the police forcibly from one Ehsan Ullah and the same does not belong to him. This is true version of the accused as Ehsan Ullah himself appeared bethre the police and voluntarily handed over the motorcycle, which is a crime property. Similar is the statement of Tanvir Masih accused with a plea that he is son of preach man of the Christianity Faith having good reputation. Accused Amar Masih is aged 18 years, a student, while age of Tanvir Masih is 20 years and that of Asif 26 years. All the three accused have been falsely involved in the case and this is proved that there is no evidence against them connecting them with the commission of the offence.
27. In defence, Mst. Asia Bibi appeared as D.W.1 and stated that she met the victim by chance and found her lying in the middle of the road. According to her deposition, her husband Abdul Rasheed lifted her and took her at road side and she asked for help. However, she admitted that her meeting with the victim was on 10th of January, 2002 and Mst. Saira remained with them for two days.
According to D.W.1, Mst. Saira told her that she had left her house due to quarrel of her step-mother.
Thereafter, this witness made a telephonic call and Chachazad of Mst. Saira Bibi reached at their house. She further stated that she personally accompanied Mst. Saira Bibi up to house of her Phophizad sister, at Jandiala Baghwala. She requested the relatives of the victim not to beat her and they promised this.
28. Abdul Rasheed D.W.2 is the husband of Mst. Asia Bibi D.W.1 and his statement is absolutely different from his wife. According to him when both D.W.1 and D.W.2 reached at Bypass Mst. Saira Bibi started walking behind them. The statement of this witness is similar to D.W.1 stating that the victim was suffering from the quarrel treatment of her step-mother.
29. From the entire evidence on the record, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the story of abduction and that of commission of Zina by anyone of the accused under section 10(2) of the Ordinance is a complete lie.
30. For reasons stated above, I have no doubt in my mind that the prosecution has failed to prove its case. In this view of the matter all the three appeals filed by Muhammad Asif, Amar Masih and Tanvir Masih are accepted by setting aside the impugned judgment of the trial Court, dated 5-3- 2003. All the three appellants shall be released forthwith if not required in any other case.
31. The victim has filed Criminal Revision No,37/L of 2003 with a plea that the sentence awarded to the three appellants/accused may be enhanced.
' In view of acceptance of the appeals, this revision petition has no merit and is dismissed.
32. The judgment was reserved in this case. Office to inform the learned counsel for the parties as to the aforementioned decision.