1. Dr. Fida Muhammad Khan, J.--This criminal appeal jointly filed by Abdus Samad son of Akhtar Gul and Abdullah son of Muhammad Jamshad is directed against the judgment dated 29.9.2003 passed by the learned Additional Sessions Judge-II Nowshera whereby she has convicted the appellant/accused Abdullah Under Section 5 & 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, and sentenced him to undergo seven years R.I. and fine of Rs, 5000/- as Tazir or in default he further undergo six months S.I. She further convicted him under Section 11-16 of the Ordinance to undergo 3 years R.I. His all sentences were ordered to run concurrently. The appellant/ accused Abdus Samad convicted under Section 368 PPC and sentenced him to undergo five years R.I. with fine of Rs, 5000/- or in default of payment of fine he further suffer one month S.I. The benefit of Section 382-B, Cr.P.C. has been extended to them.
2. 2.Mst. Bushra, victim has filed Cr. Revision No, 32/1/2003 for enhancement of the sentences. Both the matters arising out of the same judgment and we are disposing them of by this single judgement.
3. 3.Briefly stated, facts of the prosecution case as disclosed in the complaint (Ex. PA/1) which was incorporated in the formal FIR at Police Station Pubbi on 25.9.1996 at about 17.30 hours are to the effect that complainant Amir Khan reported the matter to police that Mst. Bushra aged 15/16 years inticed away by Abdullah appellant for illicit intercourse. He stated that Mst. Muqam Zarina (PW1) widow of Amir Khan and mother of abductee Bushra disclosed her miseries when she found, her daughter missing from the house in the morning. She rushed to her husband and told him about the incident and all the family members were sleeping. Her husband consulted his brother and report the matter to police but not named any body later on when they named Abdullah had enticed away their daughter for the purpose of marriage/illicit intercourse. The appellants were arrested and after necessary investigation they were challaned to face the trial. Both of them were formally charged on 15.7.1998 which they did not plead guilty and claimed trial. On conclusion of trial they were convicted and sentenced as mentioned hereinabove.
4. 4.At the trial, the prosecution examined nine witnesses in support of its case. Muqam Zarina (PW.1) mother of the abductee deposed as under: "I alongwith my husband was sleeping in the veranda of our house, while Mst. Bushra was sleeping inside the room. Early in the morning, when I got up and went inside the room, saw Mst. Bushra my daughter missing from the room. I informed my husband about the missing of Mst. Bushra and he informed his brother Abdul Rashid, who is living near to our house. In first instant we did not suspect any body for the abduction of Mst. Bushra, but later on we came to know that one Abdul Ullah whose services we had earlier obtained for some construction purpose has enticed/abducted Mst.
5. Bushra, for the purpose of contracted marriage with her. First my brother-in-law had reported the matter for the purpose of information and when accused was known to us then my husband now dead lodged the proper FIR. During the course of investigation abductee was recovered by the police from the house of co-accused Abdul Samad of village Chamkani, the witness has said some where from Charsadda. I charged the accused for the abduction of Mst. Bushra and plying with our honour. The site-plan in the case was prepared by the I.O. on my instance".
6. Mst. Bushra (PW.2) victim mad statement in the following words:-- "I was sleeping in one of the room of the house, while my parents were asleep in the Veranda of our house. Early in the morning I got up and swept the dost of the house and then took it into a basket. I went out side to dispose of the dust and when I was coming back, accused Abdullah put something on my mouth, with which I got unconscious. At about 11.00/10.00 hours when I became conscious I was lying in Sugar cane field. I saw accused Abdul Ullah standing before me and he told me that I have brought you for contracting marriage with me. Thereafter, the accused took me away to various places and all during this he was committing illicit intercourse/Zina with me. Lastly accused kept me in the house of one Abdus Samad at Chamkani, where from I was recover by the police during raid proceedings and Abdul Ullah make his escape good. I charge accused for my abduction and committing Zina with me".
7. PW3 Lady Doctor Najma Khan, M.0 DHQ Hospital Nowshera on 29.10.1996 at 2.30 p.m. Medically Examined victim Bushra and observed as under:-- "PATIENT EXAMINED:--Patient is fully conscious.
8. PV:--Done. No marks or. bruise on external genitalia.Hymen ruptured, sacred vagina admits one finger easily untrus-normal size.
1. She was a young lady.
9. 2Of about 16/17 years.
3. She has been raped according to my opinion and examination there were stains of semen on her shalwar, which were handed over to the police for Chemical analysis. Vaginal swabs taken for Chemical analysis handed over to police.
10. ADVISED 1.Pregnancy test.
11. 2.X-Ray for age (opinion from Radiologist)
12. 3.Ultrasound, abdomen and pelvis.
13. I have seen Medi-co-Lgal report Ex. P.M. It is in my hand writing and correctly bears my signature. In the Medi-co-Legal report in the sixth line immediate before word vagina and in line 10 of S. No, 2 just before x figure. 16 there are cutting made by me and these bears my initial.
14. Similarly referring chit Ex. PM/1 to Ex. PM/3 are in my hand writing and bear my signature."
15. Bakht Taj, LHC (PW.4) is marginal witness to the recovery memo (Ex. PF) vide which the abductee was recovered from the house of appellant Abdus Samad situated in village Chamkani. Quraish Khan, FC (PW5) is marginal witness to the recovery memo (Ex. PW 5/1) whereby one sealed bottle containing swa bs and a shalwar stained with semen were taken into possession. Shahid Khan, Senior Civil Judge/Judicial Magistrate (PW6) on 4.11.1996 recorded confessional statement of appellant Abdullah which is (Ex. PW6/2). Rahim Dil Khan, S.I. (PW7) made Entry No, 9 dated 20.2.1996 in daily diary on the report of Abdul Rashid and on 25.9.1996 complainant Amir Khan came to P.P.
16. Jalozai where he drafted the murasila (Ex. PA/1) on the statement of complainant and sent to the police station for registration of the case. On 28.10.1996 he raised the house of appellant Abdus Samad and recovered the abductee from his house and prepared such memo which is (Ex. PF) he got recorded her statement under Section 164 Cr.P.C. He also got her medically examined on 29.10.1996. He also taken into possession the trouser having semen stains and a phial containing swa bs vide recovery memo (Ex. PW5/1). He recorded the statements of the PWs and after completion of investigation submitted case file to the SHO for submission of challan. Dr. Nasrullah (PW8) on 2.11.1996 Medically Examined Abdullah and found him fit to perform sexual intercourse.
17. Zahid Khan, DSP (PW9) submitted challan against the appellants.
5. Both the appellants made their statements under Section 342 Cr.P.C. wherein they denied the allegations and pleaded innocence. The appellant/accused Abdullah in reply to Question No, 7 why the PWs have deposed against you? made statement in these words:-- "The father of Mst. Bushra is shifting his responsibilities to my shoulders, because some of his relatives were interested to marry his daughter Mst. Bushra, but Mst. Bushra was interested to marry me that is why the father of the lady charged me to save the skin."
18. He made his statement under Section 340(2) Cr.P.C. and deposed as under:-- "Mst Bushra is legally wedded to me and we have performed our Nikah in village Tarkha in District Charsadda. The Nikah was performed by Molvi Aftab Gul in the presence of Hazrat Sher, Fazal Hakeem and a Numbardar, whose name is not remember to me. After Nikah we lived like husband and wife before our arrest, we remained in the house of my relative Abdul Samad in village Chamkani. I have already stated in the Court of Judicial Magistrate, Nowshera that Mst. Bushra is my legally wedded wife and I have not abducted her. I have instituted a case for conjugal rights in the Court of family Judge, Peshawar in which besides Bushra her parents etc. were made party.
19. Which is Ex. AW1/1 to Ex. AW1/29. I am ready to get back Mst. Bushra as my wife. I never abducted her. I am innocent and falsely been implicated in the present case."
20. He also produced Muhammad Nawaz Daudzai, Advocate (DW1) who verified affidavit (DW.1/2) dated 30.9.1997 on which thumb-impression of Mst. Bushra in the presence of marginal witnesses.
21. Molvi Aftab Gul (DW.2) performed Nikah of Mst. Bushra with the appellant according to sweet well in the presence of witnesses, which is (Ex. DW.2/1) Hazrat Sher (DW.3) is witness of the said Nikah of Mst. Bushra with Abdullah appellant. Shamsur Rehman (DW.4) also member of Jirga in order to patch up with Abdullah to divorce Bushra. It is only condition of patch up. Abdul Majeed (PW.5) is Ex-Counciler. He was also the member of same Jirga. Rahim Gul (DW.6) also member of the Jirga proceeding.
22. 6.We have heard the learned counsel for the parties and have perused the record with their assistance. Learned counsel for the appellants submitted that there are contradictions and discrepancies in the statements of PWs, that the learned trial Court has misread and misinterpreted the evidence and the conclusion drawn by him is erroneous and not maintainable and that the benefit of doubt should got to the appellants as the prosecution has failed to prove its case beyond any reasonable shadow of doubt He also dwelt at large on the evidence of DWs brought on record. Learned counsel for the State, however, referring to the decree in suit for restitution of conjugal rights of appellant Abdullah, supported the impugned judgment. He however, was not in a position to defend the impugned judgment, so far as appellant/accused Abdul Samad is concerned.
23. 7.We have thoroughly appreciated the evidence brought on record by both the parties. It transpires that the case of prosecution mainly rests on the statement of Mst. Bushra who has appeared as PW2 and made detailed deposition. She has alleged that on the fateful night she was sleeping in one of the rooms of her house and her parents were also asleep in the varanda. Early in the morning when she got up she after sweeping her house, took the garbage in a basket and went outside for its disposal. On her way back the appellant/accused Abdullah put something on her mouth and she became unconscious. When she regained her senses at 1100 hours, she found herself lying in a sugarcane field while said Abdullah was standing with her. He told her that he had brought her for contracting marriage with him. Thereafter he took her to various places and kept on committing zina with her. Finally he brought her to the house of co-accused Abdul Samad at Chamkani wherefrom she was recovered by the police. Abdullah however, made good his escape.
24. She charged Abdullah for abduction and commission of zina with her. As appears from the record, this incident took place on night intervening 19/20 September, 1996. Subsequent to an information, she was recovered by PW7 on 28.10.1996 from the house of co-accused Abdul Samad after conducting raid. He prepared recovery memo Ex. PF in this respect. Thereafter he produced her before the local Magistrate who recorded her statement under Sectioh 164 Cr.P.C. He also produced her before PW3 Lady Dr. Najma Khan on 29.10.1996 for medical examination. Her report reveals that Mst. Bushra had been raped and her hymen had been ruptured. She stated her age about 16/17 years. She also observed stains of semen on her shalwar which had been taken into possession by PW7 vide recovery memo Ex. PW5/1. PW3 took vaginal swabs also for chemical analysis and handed over the same to police. Report of the chemical Examiner (Ex. PN) on the aforementioned shalwar and swa bs, tendered in evidence, is positive, Mst. Bushra has been subjected to lengthy cross-examined but she has remained firm and her statement has not been shaken. She denied the suggestion that while the appellant/accused Abdullah was working as a labourer, during the construction, she had created soft corner from him and therefore,. on her own accord had gone with him. She also added that said Abdullah kept her in 5/6 houses during the period of her abduction and used to keep her locked inside the room and never allowed anybody to see her. She also denied to have thumb-marked any document or affidavit or to have contracted valid marriage with him on her own consent. The appellant/accused Abdullah had taken the plea that she was his legally wedded wife as they had performed valid nikah in presence of Maulvi Aftab Gul. He has examined six witnesses in this connection who include DW2 Nikah Khawan and DW3 witness of nikah. However, it is pertinent to mention that his suit for restitution of conjugal rights was dismissed by the family Court.
8. Taking into account all what has been stated above, it becomes crystal clear that the case of prosecution against the appellant/accused Abdullah is proved to the hilt. According to the dictum contained in case reported as PLD 1984 page 95, (Muhammad Azam versus the State), the decree of family Court is final in all such disputes. The record shows that the appellant/accused Abdullah instituted suit for restitution of conjugal rights against Mst. Bushra wherein, inter-alia, he claimed her to be his legally wedded wife with whom he had contracted marriage at District Charsadda, about three years back, in accordance with Muslim rites. After thorough consideration the learned Family Court finally came to the conclusion that no nikah or marriage was ever solemnized between the parties. Consequently he dismissed the suit and decreed against him. This position negates the plea of appellant/accused Abdullah regarding his valid marriage having taken place with Mst. Bushra. According to his statement under Section 342 Cr.P.C., he had lived with Mst.
25. Bushra as his wife before his arrest. In response to Question No, 4 about his commission of zinc with Mst. Bushra he categorically admitted that she was his legally wedded wife and was living with him as his wife. He also admitted that they were living as husband and wife when they were arrested from the house of Abdul Samad, co-accused who in his relative. Thus it is quite clear and there remains no doubt whatsbever about his commission and sexual intercourse as well as his living with Mst. Bushra who was recovered from the house of Abdul Samad, appellant/accused. As envisaged by Section' 4 of the Ordinance a man and a woman are said to commit zina if they will willfully have sexual intercourse without being validly married to each other. In the instant case, as stated above, besides the admission made by the appellant/accused Abdullah, about living with Mst. Bushra as her husband, the MLR, Chemical Examiner's report and other circumstances alongwith deposition made by Mst. Bushra he has been found guilty of offence under Sections 5 & 10 of the Ordinance. In this view of the matter, we have also come to the irresistible conclusion that the prosecution has brought home guilt of the appellant/accused Abdullah beyond any reasonable doubt.
26. 9.Regarding the appellant/accused Abdul Samad, however, we don't find anything on record, which may implicate him as an accused. No evidence has been brought by the prosecution to prove that he was a party to the abduction. Keeping in view the cultural traditions of the area as well as the plea taken by the appellant/accused Abdullah who was closely related to him, he might have bonafidely given shelter to Abdullah and may not have had any criminal intention as no evidence is on record to show that he had any role in the matter. The case of prosecution against him in therefore, not established beyond any reasonable doubt and we feel that he is entitled to get the benefit of doubt.
27. 10.Consequently for the reasons stated above, the appeal to the extent of appellant Abdullah son of Muhammad Jamshed is dismissed. The conviction and sentence's of imprisonment recorded against him under Sections 10(3) and 11/16 of the Ordinance by the learned Additional Sessions Judge-II, Nowshera are maintained. Since the sentence of fine is not provided under Section 10(3) of the Ordinance, therefore, the same is set aside. However, the appellant is sentenced to pay a fine of Rs, 20,000/- under Sections 11/16 of the Ordinance or in default thereof to undergo six months S.I.
28. The amount of fine, on realization, shall be paid to the abductee i,e, Mst. Bushra daughter of Amir Khan. Both the substantive sentences of imprisonment shall run concurrently as ordered by the learned trial Court. The benefit of Section 382-B Cr.P.C. shall also remain intact.
29. 11.The conviction and sentences inflicted on appellant Abdul Samad son of Akhtar Gul are set aside and he is acquitted of the charge. The appeal to his extent is allowed. The appellant Abdus Samad is on bail and his bail bonds are discharged.
30. 12.Criminal Revision No, 32-I of 2003 to the extent of infliction of sentence of fine under Sections 11/16 of the Ordinance on the appellant/Respondent Abdullah is partially allowed.