' ABDUL HAMEED DOGAR (CHAIRMAN).---At the very outset Mr. Muhammad Ilyas Siddiqui, learned counsel for appellants and Kazi Khalid Ali, Addl. A.-G. Sindh stated that instead of hearing Criminal Miscellaneous Application No,54(S)/2004, Criminal Shairat Appeals Nos.10(S) and 11(S) of 2003 may be heard as both of them are prepared to argue the same. The said request is allowed.
2. This appeal with leave of the Court is directed against the judgment dated 24-4-2002 of learned Federal Shariat Court, whereby Shariat Appeal No,49-K of 2001 filed by appellants Syed Nadeem Shah, Syed Zahid Shah and Abdul Haq was dismissed.
3. Briefly stated, the relevant facts are that on 19-7-1998, complainant Ali Muhammad lodged F.I.R.
No,95 of 1997 at Police Station B-Section, District Sukkur, against appellants under sections 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as 'the Ordinance') alleging therein that his daughter Mst. Razia aged about 13 years, used to study in 7th Class. Five months prior, she had informed him that appellant Syed Nadeem Shah had been teasing her while going to and coming back from school. The matter was brought into the notice of Sajjad Ali Shah, the elder brother of appellants, but in vain, as such, the complainant being a noble mechanic, abandoned her education. According to him, on 5-7-1998, at about 2-30 p.m. While he was returning from town after purchasing household articles and was about to reach the house, he saw appellants Nadeem Shah, Zahid Shah and Abdul Haq with pistol who put an handkerchief on her mouth and took her to the house of appellant Zahid Shah. Ali Muhammad complainant and his wife P.W. Mst. Sabranbano raised hue and cry which attracted Chulam Muhammad Mirani and Muhammad Alam Abbasi and then all of them went to the house of appellant Zahid Shah and knocked the door of his house and asked him to return the abductee. After lot of resistance and .On gathering of neighbourers, appellant Zahid Shah opened the door and allowed to search his house.
They, however, recovered the victim lying in semiconscious condition from a locked room situated in the mid of stairs. She was brought to the house and from where was sent for medical check-up.
Appellants entreated him in the name of Almighty Allah not to lodge F.I.R. As they had committed mistake and would compensate him, but later on, resiled, as such, the above case was registered.
4. After completion of investigation, appellants were sent up to face trial before the Court of learned Additional Sessions Judge (Hudood), Sukkur, who on conclusion of the trial found them guilty of the offence of abduction/kidnapping abductee Mst. Razia as described under section 366, P.P.C. And also about her being wrongfully confined and were sentenced to suffer ten years' R.I.
Each with fine of Rs,10,000 each, in default whereof to suffer further R.I. For one year. However, they were allowed benefit of section 382-B, Cr.P.C.
5. In appeal, the learned Federal Shariat Court found appellants guilty under section .11 of the Ordinance and maintained the sentence of ten years R.I. And that of fine awarded to them by the trial Court.
6. We have heard Mr. Muhammad Ilyas Siddiqui, learned Advocate Supreme Court for appellants Syed Nadeem. Shah and Syed Zahid Shah and Kazi Khalid Ali, Additional A.-G., Sindh for the State and have gone through the record and proceedings of the case in minute particulars.
7. Learned counsel for appellants vehemently contended that the impugned judgment is not sustainable in law as the same is based on wrong assumption of facts and law. According to him , there is an admitted delay of 14 days in the lodging of the F.I.R. About which no plausible explanation of any sort has been furnished. He next contended that the complainant had been changing his stance with regard to the case of the prosecution and raised three different pleas at different levels; firstly, that an entry dated 5-7-1998 was made in the daily roznamcha of police station wherein it was disclosed that on the above date, complainant Ali Muhammad had left the house on his usual work in the morning and when returned at 7.00 p.m., his wife Mst. Sabranbano told him that their daughter Mst. Razia had gone outside with some work at 12-30 noon and on return, she told that appellant Syed Nadeem Shah, Syed Zahid Shah and two unknown persons had committed Zina with her; secondly, that in the Constitution Petition No,S-894 of 1998 filed by complainant Ali Muhammad before the High Court of Sindh, Bench at Sukkur for registration of F.I.R, it reveals that on 1-7-1998 at about 2.00 p.m. His daughter purchased the ice and while returning back when reached near the door of the house, appellants Syed Nadeem Shah, Syed Zahid Shah and Abdul Haq came there from her backside and put an handkerchief on her mouth and dragged her at the show of pistol. This all was witnessed by her younger daughter who immediately informed the inmates of the house about the incident. At that time, he was not present in the house but came after two hours of the incident and thirdly, the version as disclosed in the F.I.R speaks of the incident in different manner whereby the complainant had said that on the day of incident at about 2.30 p.m. When he was returning to his home from town after purchasing household articles, he saw appellants dragging her daughter and beating her and thereafter, they took her to the house of appellant Syed Zahid Shah. According to him, abductee Mst. Razia in her statement before the Court has not stated that she was recovered from the house of Syed Zahid Shah. He submitted that as per medical evidence furnished by Dr. Saima Qureshi, Medical Officer, neither any mark of violence was found on the body of the victim nor she was subjected to the act of rape and her hymen was found intact. He lastly submitted that ingredients of section 11 of the Ordinance are not attracted in this case as the prosecution has miserably failed to bring on record the requisite evidence on that aspect. Even from the testimony of abductee, no offence of abduction as required under section 11 of the Ordinance is made out, as such, appellants deserve acquittal.
8. On the other side, Kazi Khalid Ali, Additional A.-G., Sindh on behalf of the State, controverted the above contentions of the learned counsel for the appellants and contended that the learned Federal Shariat Court has fully dealt with all the legal as well as factual aspects of the case.
9. From the record, it transpires that the prosecution has been changing its stance from the very beginning. From the above narrated facts -and the contentions it is abundantly clear that complainant Ali Muhammad has not taken one plea but has been changing version as per his desire.
10. In order to reappraise the evidence, it would be appropriate to have a glance at the evidence adduced by complainant Ali Muhammad P.W.1, abductee Mst. Razia P.W.6, Mst. Sabranbano P.W.4 and lady doctor Saima Qureshi (P.W.7).
11. Complainant has supported the contents of F.I.R in toto whereas his wife Mst. Sabranbano stated that it was at about 2/3 p.m. She along with her both daughters were available in the house. Her husband had gone to bazaar to purchase some household articles. All the three appellant knocked the door of their house and her daughter Razia opened the door and all the three appellants entered in the house. Appellant Abdul Haq was armed with Pistol pointed the same towards them and issued threats not to make any noise otherwise they would kill them. Appellant Zahid Shah kept handkerchief on the mouth of her daughter Razia and appellants dragged her with them from the house. In the meantime her husband returned to whom she disclosed the incident. Whereafter, they along with neighbourers proceeded to the house of appellant Zahid Shah and knocked at his door. After much resistance the door was opened and on search, their daughter Mst. Razia was found lying unconscious in a room situated near stairs and her neck was tied with her Dopata. They took back their daughter and in the meanwhile police also arrived there and on seeing the police, appellants escaped from the spot.
Police took them along with abductee at Police Station and sent her for medical examination.
12. Mst. Razia in her statement has started that on the fateful day at about 2-30 p.m. While she was present along with her mother and minor brother and sisters in the house, the door of their house was knocked, whereupon her mother asked her to open the same. As soon as she opened the door, appellants Syed Nadeem Shah, Syed' Zahid Shah alias Haji Shah and Abdul Haq entered into the house. Appellant Abdul Haq pointed pistol towards her mother, whereas appellant Syed Zahid Shah caused blow on her head and she fell down. Appellant Abdul Haq put handkerchief on her mouth and thereafter she did not know as to where they had taken and when she regained senses she found herself in the hospital. The medical evidence furnished by lady doctor Samia Qureshi that on examination the abductee was found virgin and her hymen was intact negates the initial ocular version of complainant Ali Muhammad incorporated in daily Roznamcha whereby as per victim's own statement, she was sexually assaulted by appellants Syed Nadeem Shah and Syed Zahid Shah.
13. For better appreciation, section 11 of the Ordinance is reproduced as under: "Section 11. Kidnapping, abducting or inducing women to compel for marriage etc.--Whoever kidnaps or abducts ally 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."
14. From the above discussion of the evidence we are of the considered opinion that no offence as contemplated under section 11 of the Ordinance is made out as the prosecution has miserably failed to bring on record the evidence that abductee Mst. Razia was abducted or induced to compel for marriage against her will or she was forced or seduced to illicit intercourse or that there was even likelihood of her being force or seduced to illicit intercourse. Even no case under section 366, P.P.0 is made out. Thus the conviction and sentence under section 11 of the Ordinance are not sustainable in law.
15. For the foregoing reasons, both the appeals are allowed, impugned judgment dated 24-4-2002 passed by the learned Federal Shariat Court, is.Set aside and appellants, namely Syed Nadeem Shah, Syed Zahid Shah and Abdul Haq are acquitted from the charge under section 11 of the Ordinance. They are in custody. They shall be released forthwith if not required in any other case.