' This appeal is directed against the judgment dated 20-12-2003 passed by Additional Sessions Judge, Karor, District Layyah, whereby the appellant was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to ten years' R.I. He was also convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to three years' R.I. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C, was extended to him.
2. Relevant facts are; Shaikh Muhammad complainant (P.W.8) submitted a complaint in writing before D.S.P. Karor on 10-5-2002 regarding an occurrence that allegedly took place during the course whereof his daughter Mst. Raishman, aged 15/16 years (P W.7) was enticed away by the appellant with the connivance of Ghulam Abbas, Mst. Sakina and Mubarak Ali (acquitted accused) and she was subjected to Zina-bil-Jabr by the appellant. This complaint was marked by D.S.P. To S.H.O. Karor for necessary action, in consequences whereof case under sections 10(3) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station Karor on 10-5-2002.
3. Investigation was initiated and after its completion the appellant and his above mentioned co- accused were challaned to Court.
4. At the commencement of the trial charge-sheet was framed by the learned trial Judge against all the accused i,e, appellant, Ghulam Abbas, Mst. Sakina and Mubarak Ali for offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Additional charge for offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 qua appellant and Ghulam Abbas was mentioned in the charge-sheet. All the accused pleaded not guilty and claimed to be tried.
5. The prosecution produced, in all, eleven witnesses, out of whom the statements of Rihan Anwar, S.-I. P.W.1, Muhammad Arshad Head Constable P.W.2, Wazir Muhammad Constable P.W.3 and Abdul Hameed, A.S.-I. P.W.5 are of formal nature. Dr. Dilawar Hussain P.W.4 deposed that he examined Muhammad Sharif appellant and found him fit to perform sexual intercourse, vide his report Exh.P.B.
6. Dr. Soraya Jabeen Women Medical Officer, P.W.6 deposed that she was posted at the relevant time at Tehsil Headquarters Hospital Karor. On 13-5-2002 she examined Mst. Raishman, the alleged victim and made the following observations:-- 'On local examination No bruise or laceration on genitalia or thighs. No stain of semen on genitalia on inner thighs. Hymen not in tact. On vaginal examination Vagina admits two fingers easily. Uterus was normal size. On speculum examination. Vaginal muccosa normal. No redness or bruises present. Three vaginal swa bs taken and sent to Chemical Examiner for detection of semen." She proved her medico-legal report Exh.P.C. She further deposed that, as per report of the Chemical Examiner, the swa bs were stained with semen.
7. Mst. Raishman P.W.7, alleged victim, deposed that 1-1/2 years prior to her statement in Court, she was present in her parent's house when Mst. Sakina and Mubarak Ali came there and asked for the compromise with her parents as regards the quarrel that took place between them and Muhammad Sharif. This request was turned down by her father. She deposed that her Nikah had been performed with Muhammad Latif cited P.W. (not produced) but Rukhsati had not taken place.
As regards the occurrence her testimony was to the effect that at night time, while the members of her family were asleep, Muhammad Sharif came there and informed her about the illness of her sister with a request to accompany her She agreed to this request and boarded a car. She found that Mst. Sakina and Mubarak were already seated in the car while Ghulam Abbas was sitting in the driving seat. She was taken to Mauza Jamal Chapri where Muhammad Sharif and Ghulam Abbas committed Zina with her. Thereafter, Ghulam Abbas came back but Mst. Sakina and Muhammad Sharif stayed there and took her to Multan. Muhammad Sharif wanted to get her thumb-impression on blank papers but she rejected the idea and came back to Jamal Chapri. She was kept by the appellant in a hotel for one day. Police came at Jamal Chapri and apprehended her and the appellant. She was then produced before the Magistrate who recorded her statement under section 164, Cr .P. C .
' She was cross-examined at great length by the defence. She admitted that Latif with whom her Nikah had been performed was disabled to walk and she was not agreeable to this Nikah which was performed at the instance of her father. She then tried to correct herself by deposing that Nikah took place with her consent. According to her after recovery she was kept at police station for one night and her father, mother and wife of one Aslam stayed with her. She also admitted that an Advocate met her at the police station during that she was questioned as to whether she had mentioned the name of Ghulam Abbas as an accused person in her statement under section 161, Cr.P.C. Her answer was in the affirmative. She was confronted with her statement Exh.D.A. Where it was found missing. She frankly stated that she could not identify Ghulam Abbas accused. As regard the mention of the name of Mubarak Ali accused she was also confronted with her statement before the police and it was found that it was not so recorded there. The factum of her stay at Jamal Chapri was not mentioned in her statement and so also her visit to Multan and back to Jamal Chapri. She denied the suggestion that it was at her behest that Muhammad Sharif appellant had instituted a suit for dissolution of marriage.
8. Shaikh Muhammad complainant P.W.8, in his examination-inchief, deposed about the occurrence as divulged in the complaint before the D.S.P. He stated that he got drafted the complaint from the clerk of Riaz Hussain Shah, Advocate. According to him a demand was raised before Ghulam Abbas for return of Mst. Raishman who agreed to it. He denied the suggestion that Mubarak Ali and Mst. Sakina were roped in the case due to their relationship with Muhammad Sharif appellant.
9. Statement of Muhammad Ramzan P.W.9 is in the nature of Wajtakar evidence. He deposed that he saw Mst. Raishman riding in a car along with the accused in the case. Although in his examination-inchief he had not said about his participation in the investigation of the case, yet strangely enough, he was cross-examined at length by defence counsel in this behalf. He denied the suggestion that Raishman was sister-in-law of the appellant and, that in his presence she expressed her desire to institute a suit for dissolution of marriage against Latif (his brother).
10. Roshan Din P.W.10, who was posted as S.-I. At Police Station Karor at the relevant time, deposed about the various steps for completion of investigation of the case. According to him a car No,TS- 1919 was recovered vide memo. Exh.P.F. During the course of investigation it transpired that Mst.
Sakina and Mubarak Ali were innocent. This finding was verified by S.H.O. Police Station Karor. In his cross-examination he admitted that, as per his investigation, Ghulam Abbas had neither accompanied Muhammad Sharif for abduction of Mst. Raishman nor his guilt of commission of Zina with her could be established. He conceded that he recorded the statement of Mst. Raishman on a paper and obtained her thumb-impression on it. He frankly admitted that Mst. Raishman did not involve Ghulam Abbas, Mst. Sakina and Mubarak Ali, as accused, in her statement under section 161, Cr.P.C. He also admitted that he had mentioned in case diary dated 28-5-2002 that "perhaps Father of Mst. Raishman and others had tortured her to give statement against Ghulam Abbas". According to him D.S.P. Karor had also declared Ghulam Abbas as innocent.
' He joined Muhammad Latif son of Wali Muhammad in the investigation who stated that he had entered into Sharai Nikah with Mst. Raishman. He found him to be a crippled person (lame). He accepted the correctness of the suggestion that Mst. Raishman was the sister-in-law of Muhammad Sharif appellant.
11. Last witness produced by the prosecution was Asim Sadiq Qureshi, Judicial Magistrate, Karor P.W.11 who deposed that on 13-5-2002 he recorded the statement of Mst. Raishman under section 164, Cr.P.C.
' He conceded, during cross-examination, that he neither summoned the accused persons through notice at the time of recording the statement of Mst. Raishman under section 164, Cr.P.C. Nor did he direct that any representative of the accused persons be present. He stated that he did not deem it proper. Since the accused were not present no question on their behalf, was put to Mst. Raishman.
This statement due to lack of opportunity to the accused to cross-examine her carried little evidentiary value.
' The learned A.D.A. Tendered the report of Chemical Examiner as Exh.P.H. And closed the prosecution evidence.
12. It is not necessary to refer to the statements of Ghulam Abbas, Mst. Sakina and Mubarak Ali recorded under section 342, Cr.P.C. As they were acquitted by the learned trial Court.
13. The appellant, in his statement under section 342, Cr.P.C. Denied the prosecution story in toto. He contended that Mst. Raishman was his sister-in-law and her Nikah was performed with one Muhammad Latif but she was not happy with her Nikah. She accordingly sought the help of his (appellant) wife for filing a suit for dissolution of marriage. It is for this purpose that she visited her sister's house. He helped Mst. Raishman in filing the suit and this annoyed her father, her brother- in-law Muhammad Ramzan and other relatives of Muhammad Latif with the result that he was falsely implicated in the case. He stated that he would produce defence evidence but would not enter the witness-box under section 340(2), Cr.P.C. To vindicate his position, by deposing on oath.
' In defence Faiz Muhammad D W.1 and Mst. Naziran Bibi D.W.2 entered the witness-box. Faiz Muhammad deposed about the innocence of Ghulam Abbas.
' Mst. Naziran Bibi D.W.2 deposed about institution of suit for dissolution of marriage by Mst.
Raishman against Muhammad Latif and help rendered by Muhammad Sharif appellant in this behalf. She stated that she along with Mst. Raishman and Muhammad Sharif went to Court at Karor but found it closed due to holiday. Then a car owned by Imdad Hussain was hired to reach the Court premises. On their return home they found the police present in the village that apprehended Muhammad Sharif and Mst. Raishman. She tried to convince police about the innocence of the appellant. She informed the police that she was the daughter of Shaikh Muhammad complainant and sister of Mst. Raishman and that none had abducted her nor committed Zina with her. She went on to state that she visited the police station and joined the investigation but her statement was not recorded by the police. She categorically stated that it was her father who had falsely implicated them the appellant and others.
14. I have heard the learned counsel for the parties and perused the record with their assistance.
' It is urged by the learned counsel for the appellant that a false case was registered by Shaikh Muhammad complainant as he was annoyed with the appellant due to help rendered by him to Mst. Raishman for getting rid of Muhammad Latif with whom her Sharia Nikah had been performed against her consent, by filing a suit for dissolution of, marriage. It was also urged that co-accused of the appellant had been acquitted and it would not be safe to maintain the conviction of the appellant on the basis of the same tainted evidence.
' Learned counsel emphatically argued that statement of Mst. Naziran D.W.2 was of great significance. However, the learned trial Judge failed to attach any importance, whatsoever, to her deposition.
' On the other hand, Mr. Fazal-ur-Rehman Rana, learned counsel appearing for the State tried to defend the impugned judgment.
15. I find that the prosecution had miserably failed to prove its casek against the appellant.
' To begin with, the perusal of the complaint Exh.P.A., read in conjunction with the admission Of Shaikh Muhammad that the same was drafted by a clerk of an Advocate leaves no room for doubt that there is delay of two days in lodging the complaint and no satisfactory explanation is forthcoming in this behalf.
' Roshan Din, Sub-Inspector, had conceded in his deposition that he found Mst. Sakina, Mubarak Ali and Ghulam Abbas to be innocent. According to him his investigation was verified by D.S.P. Also.
' The three co-accused, of the appellant who were fully implicated as accused by the complainant, right from beginning, were found to be innocent by the trial Court and acquitted. Thus, the prosecution story suffered irreparable loss of credibility. It is true that it is the duty of the Court, as per settled principle of law, to sift the grain from chaff, however, each criminal case proceeds on its own peculiar facts and evidence brought on record. Keeping in view the above two principles, it has to be seen as to whether the statement of Mst. Raishman, coupled with the deposition of her father could be safely relied upon for convicting the appellant. Mst. Raishman stood exposed as liar, as in her statement under section 164, Cr.P.C., she had implicated the acquitted co-accused along with the appellant and said version of the occurrence was disbelieved by the learned trial Judge. No reliance could, therefore, be placed on her testimony.
16. It is in evidence that the hand of Mst. Raishman was given in Sharia Nikah to Muhammad Latif by her father. He was a crippled man (lame). Mst. Raishman did not like the marital union and before her Rukhsati could take place she had made up her mind to get annulment of this Sharia Nikah by filing a suit for dissolution of marriage before Court of law. It is in this context that the evidence of Mst. Naziran D.W.2, her real sister assumed importance for determining the fate of this appeal. She has clearly stated that at the behest of Mst. Raishman, Muhammad Sharif, her husband (appellant herein) helped in filing the suit for dissolution of marriage. They went to Tehsil Court but did not succeed in doing so as the Court was closed. However, on the second attempt they succeeded in their object and when they returned home they found that Shaikh Muhammad complainant, had brought the police to the village for apprehension of the accused.
' One can safely conclude that Shaikh Muhammad was highly annoyed with Muhammad Sharif for rendering help to Mst. Raishman, as mentioned above. Though the appellant was his son-in-law yet the complainant could not pocket the humiliation and disgrace suffered by him in the village community, as without the help of the appellant Mst. Raishman could not have succeeded in approaching the Court for grant of relief from the Court. It was in this state of agitated mind that he manipulated a well-considered complaint in writing before D.S.P. Karor, leading to the implication of the appellant and his co-accused in the case. Besides, it seems highly improbable that the appellant would have abducted his sister-in-law, take her to places and commit Zina with her. This view is fortified by the fact that no recovery of the so-called stolen valuables was effected by the police.
17. I have no hesitation in holding that Wajtakar evidence of Muhammad Ramzan P.W.9 was nothing but vain attempt on the part of the prosecution to bolster up its- case against the appellant.
18. The cumulative effect of the above discussion has led me to the conclusion that the prosecution had miserably failed to prove its case against the appellant beyond doubt. He was the victim of the vendetta of his father-in-law Shaikh Muhammad complainant and had to suffer the prolonged trial and ultimate conviction, for no fault of his own.
19. For what has been stated above, this appeal is accepted and after setting aside the impugned judgment the appellant is acquitted. He shall be released from jail, forthwith, if not required in connection with any other case.
' The above are the reasons for the short order, dated 2-6-2004.