' S.A. MANAN, J.--- This single judgment will dispose of three connected matters i,e, appeal against conviction (Jail Criminal Appeal No,182/L of 2003), appeal against acquittal (Criminal Appeal No,250/L of 2003) and revision for enhancement (Criminal Revision No,84/L of 2003).
2. Appellants Shahzad Ashraf and Muhammad Sabir have filed joint Jail Criminal Appeal No,182/L of 2003 against judgment, dated 23-7-2003 of the Additional Sessions Judge, Faisalabad, whereby Shahzad Ashraf has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance for a term of five years' R.I. With fine of Rs,30,000 and in default to further undergo six months' S.I.
' Co-accused Muhammad Sabir was found guilty of abetment and sentenced to five years with fine of Rs,30,000 and in default to undergo further six months' S.I. Under section 19 of the Ordinance.
' Other co-accused Rizwan-ul-Haq, Mst. Samia and Mst. Sadia were acquitted of the charge by giving them benefit of doubt.
3. This jail appeal was filed on 11-8-2003 while both the appellants filed a regular Appeal (Criminal Appeal No,284/L of 2003) on 4-10-2003 against the same judgment.
4. Briefly stated F.I.R. No,1, dated 8-2-1999 Women Police Station, Faisalabad was registered at the instance of one Wali Muhammad complainant with the allegations that his daughter (not named in the F.I.R.) has been abducted by the appellants through Mst. Billo daughter of Muhammad Ashraf and Mst. Aamna daughter of Anwar and there was apprehension of murder of his abducted daughter who also took away Rs,50,000 and jewellery and that legal action be taken and the abductee be recovered.
5. After investigation, the case was sent for trial against Shahzad Ashraf, Muhammad Sabir, the present appellants and also against Rizwan-ul-Haq, Mst. Sadia and Mst. Samia. These three co- accused were acquitted by the trial Court.
6. Charge-sheet was framed against the present two appellants Shahzad Ashraf and Muhammad Sabir and also against co-accused Rizwan-ul-Haq, Mst. Sadia and Mst. Samia, who did not plead guilty to the charges.
7. In order to prove the allegations, prosecution produced 19 witnesses including Mst. Nazia Wali victim as P.W.15 and P.W.16 Wali Muhammad complainant, father of the victim Mst. Nazia Wali.
8. The learned trial Court recorded the lengthy statement of Mst. Nazia Wali victim P.W.15, stating that "on 5-2-1999 at about 11-45 p.m. Sadia and Samia knocked at the door of our house; I opened the door and they asked me to accompany them and further asked me to bring some money also.
I took Rs,50, 000 plus ornaments from my house and boarded the car along with Sadia and Sarnia; I was just boarding the car when Sadia and Samia got down the car and accused Sabir, Shahzab and Rizwan boarded the car forcibly. All the three accused pointed their respective revolvers towards me and asked me to sit quiet and in case I raised an alarm, I would be shot by them. The accused took me to a village near Railway Line and confined me in a room of a house. All the said three accused committed Zina with me turn by turn". The victim made a detailed statement and thereafter she was subjected to lengthy cross-examination.
9. P.W.3 Dr. Farkhanda Iqbal medically examined the victim Mst. Nazia Wali and four vaginal swabs were taken for chemical examination. Lady doctor further stated that "in her opinion sexual intercourse has been committed with the girl many times".
' Lady doctor was also cross-examined but she remained final in her statement. The Chemical Examiner by his report dated 24-4-1999 gave the result as under:-- "The above vaginal swa bs (i), four vaginal swabs ((ii) Blood) are stained with semen. Article No,2 is blood. Portion of blood and two vaginal swabs are being sent to Serologist Government of Punjab for blood grouping and semen grouping."
' It appears that the report of the Serologist has not been placed on the record. However, Dr. Farkhanda Iqbal P.W.3, who medically examined the victim Mst. Nazia Wali, clearly stated that intercourse has been committed with the girl many times.
10. P.W.19 Malik Muhammad Aslam, Judicial Magistrate recorded the confessional statement of the victim under section 164, Cr.P.C. The victim reiterated her statement as P.W.15 adding that she was subjected to Zina-bil-Jabr by the present appellants Shahzad Ashraf, Muhammad Sabir and also Rizwan-ul-Haq co-accused.
' The Judicial Magistrate was cross-examined but nothing was found against the prosecution.
11. Dr. Masood Iqbal Bukhari P.W.1 medically examined Muhammad Sabir appellant and found him sexually potent. Similarly P.W.2 Dr. Muhammad Javed medically examined Shahzad Ashraf appellant and the result was the same. The doctor stated that Shahzad Ashraf appellant was brought by police for sexual examination and the accused was young male with secondary sexual characters were fully developed. He further clarified that in his opinion the accused Shahzad Ashraf was fit for sexual intercourse.
12. P.W.11 Zulqarnain, A.S.-I. Investigated the matter and made recovery of cash amount from Shahzad Ashraf. P.W.18 is another Investigating Officer, who prepared the incomplete challan on 22-5-1999 and thereafter the matter was transferred for investigation to D.S.P. Circle Kotwali on 25- 5-1999.
13. Mushtaq Ahmad, D.S.P. Investigated the matter and appeared as D.W.1 in the case and he found Mst. Sadia, Mst. Samia and Rizwan-ulHaq as innocent. Shahzad Ashraf and Muhammad Sabir appellants were declared guilty. The D.S.P. Was cross-examined at length but nothing against prosecution was found.
14. Appellant/accused Shahzad Ashraf was examined under section 342, Cr.P.C. And in answer to question No,13 as to why the present case was filed against him, he pleaded as follows:-- "Much prior to the occurrence Mst. Nazia Wali had relations with me. She had a desire to contract marriage with me and this fact was in the knowledge of the complainant and his family.
Accordingly Mst. Nazia Wali contracted valid Nikah with me without any coercion, duress, with her free-will. After the Nikah, she started to perform her matrimonial obligations."
' Appellant/accused Muhammad Sabir was examined under section 342, Cr.P.C. And in response to question No,12 about this case against him, he pleaded that "my co-accused Rizwan-ul-Haq while replying question No,9 of his statement, has made a detailed reply. I rely upon the said reply".
' Rizwan-ul-Haq was examined under section 342, Cr.P.C. And in reply to question No,9 he pleaded that "my alleged. Co-accused Shahzad Ashraf was my friend. He called me that he is going to solemnize marriage/Nikah with P.W.15 and I was requested to join. I went there. The Nikah was performed by the Nikah Registrar. Many other people were also present there. Mst. Nazia Wali contracted Nikah with Shahzad Ashraf with her own free-will. I only signed the Nikahnama as witness of the Nikah. According to my knowledge, thereafter Mst. Nazia Wali filed a writ petition against her parents etc. That she is apprehending fear from them. Through that writ petition, her father came to know about me as my name was cited as a witness in the Nikahnama and therefore, they involved me falsely, illegally and with malicious intention in the instant case".
15. The trial Court has extensively considered the evidence on record and convicted and sentenced the appellants.
16. Appellant Shahzad Ashraf pleaded in his statement under section 342, Cr.P.C. That he validly contracted Nikah with the victim. InI support of this plea, he produced D.W.2 Muhammad Ishfaq son of Fazal Ahmad, Nikah Registrar of Sialkot area. He deposed that "the Nikah deed between Mst.
Nazia Wali and Shahzad was performed by me, signed by me and the witnesses. The certified copy Exh.D.W.2/1 is produced. Both the parties to the Nikah had willfully agreed to the marriage". In cross- examination he clearly admitted that the house of Mst. Nazia Wali is situated at Faisalabad and he performed the Nikah in the Ward at Sialkot. A copy of Nikah referred to by this witness is D.W.2/1 and is placed on the record but it is not exhibited as D.W.2/1.
17. We have seen the original Nikahnama and the alleged marriage was performed in Ward No,28, Union Council No,8, Police Station Nikapur, District Sialkot. A person appeared on behalf of Mst.
Nazia Wali is one Muhammad Sabir son of Sardar Ahmad resident of Sialkot; he is co-accused in the case. Similarly the witness for the marriage is Rizwan-ul-Haq son of Noor-ul-Hassan resident of Faisalabad. This Rizwan-ul-Haq is also co-accused but acquitted by the trial Court.
18. The complainant lodged the F.I.R. On 8-2-1999 at Women Police Station, Faisalabad while the alleged Nikah took place within the area of Police Station Nikapur, Sialkot. It is very important to note that the alleged Nikah was performed on 22-2-1999 while the F.I.R. Was lodged by the complainant on 8-2-1999. This clearly proves the case of the prosecution that after abduction the alleged Nikah was performed. In this view of the matter, it is abundantly proved that the appellant Shahzad Ashraf was committing Zina with Mst. Nazia Wali without the later being a valid wife.
19. In the above circumstances, the plea of accused Shahzad Ashraf that he contracted a valid Nikah with the victim falls to the ground. At the same time it is also proved that the co-accused Muhammad Sabir appeared on behalf of the victim abetted the commission of the offence.
20. From the above documentary evidence on the record, it is amply proved that the judgment of the trial Court convicting and sentencing the appellant Shahzad Ashraf is valid and there is no legal infirmity in the impugned judgment. Similarly the co-accused Muhammad Sabir was rightly convicted under the offence of abetment.
21. The trial Court acquitted the three co-accused Rizwan-ul-Haq, Mst. Sadia and Mst. Samia by giving them benefit of doubt.
22. In view of above, Jail Criminal Appeal No,182/L of 2003 jointly filed by Shahzad Ashraf and Muhammad Sabir is rejected. However, there is no fine to be imposed when convicting a person under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the sentence of fine, therefore, is set aside.
23. Criminal Appeal No,250/L of 2003 against acquittal and Criminal Revision No,84/L of 2003 for enhancement of sentence awarded to Shahzad Ashraf and Muhammad Sabir, have been filed by the complainant Wali Muhammad father of Mst. Nazia Wali.
24. We have heard the learned counsel and do not find any ground to interfere with the impugned judgment as far as acquittal, and enhancement of sentence is concerned.
25. Jail Criminal Appeal No, 182/L of 2003 against the judgment dated 23-7-2003 was filed earlier on 11-8-2003 and Regular Criminal Appeal No, 284/L of 2003 on 4-10-2003. This regular appeal has become infructuous and has already been dismissed vide our order dated 18-11-2003.
26. For the reasons stated above, Jail Criminal Appeal No,182/L of 2003 jointly filed Shahzad Ashraf and Muhammad Sabir is rejected.
27. The above are the reasons for our short order dated 17-1-2005.
28. Office to inform the learned counsel for the parties about the decision of this case.
Jail Appeal rejected.