' S.A. MANAN, J.--- This judgment will dispose of two connected Criminal Appeals i,e, Criminal Appeal No,251/L of 2003 filed by Ahmad Khan appellant/accused and Criminal Appeal No,247/L of 2003 filed by Sabir Khan appellant/complainant as both arise out of common judgment dated 5- 7-2003 of the Additional Sessions Judge-HI, Mianwali.
2. Ahmad Khan, appellant has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to twenty-five years' R.I. With thirty stripes and under section 11 of the Ordinance for life imprisonment plus thirty stripes with fine of Rs,10,000 and in default to further undergo imprisonment for one year.
' Ahmad Khan, appellant has further been awarded punishment under section 368, P.P.C.
3. Briefly stated at the instance of Sabir Khan complainant, F.I.R. No,15, dated 29-1-2001 Police Station Musa Khel, District Mianwali was registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with allegations by the complainant that his daughter Mst. Nasreen Khatoon, aged about 18/19 years, was abducted by several accused namely (i) Sajid Khan armed with rifle, (ii) Ahmad Khan armed with kalashnikov (iii) Ajmal Khan armed with .303 bore rifle and (iv) Sher Abbas alias Mata armed with .7 mm rifle.
' It is in the F.I.R. That Mst. Nasreen Khatoon was forcibly abducted for purposes of commission of Zina. Other accused Shah Wali Khan armed with .12 bore rifle, Abdul Khaliq armed with .7 mm rifle, Aslam Khan armed with rifle resorted to firing in the air.
4. In order to prove the allegations, prosecution produced several witnesses and the statements of Sabir Khan, complainant is very important.
5. Sabir Khan Complainant admitted in his statement as P. W.12 that his son Saleem Khan abducted Suffiya Bibi daughter of Alam Khan and sister of Ahmad Khan appellant. Most of the accused such as Sajid Khan, Ahmad Khan and Aslam Khan sons of Alam Khan have been nominated in the case.
This goes to prove that the accused as well as complainant party are extremely inimical to each other.
6. P.W. 11 is the testimony of Mst. Nasreen Khatoon, daughter of the complainant, who has made a general statement that she was abducted and the present appellant committed Zina-bil-Jabr with her.
7. If the background of the case is taken into consideration plus the statement of the abductee, there is no difficulty in holding that the issue of abduction has been invented. Mst. Nasreen Khatoon, P.W.11 herself was accused person in the earlier case in the matter of abduction of Suffiya Bibi, sister of the present appellant. Her father (present complainant) was also one of the accused persons.
8. We have gone through the entire evidence regarding abduction and are of the view that the statements of both the complainant and his daughter are not trustworthy and confidence inspiring. Admittedly, Saleem Khan son of the complainant was accused of abducting Suffiya Bibi, sister of the appellant.
9. We have examined the statements of the P.Ws. And are of the consistent view that there is not an iota of evidence to prove the case of abduction. The learned trial Court has misdirected itself in awarding punishment to the appellant for life imprisonment under section 11 of the Ordinance and section 368, P.P.C. This being the case, the findings of the trial Court on the above mentioned charges are set aside and the appellant is acquitted of these charges.
10. As far as awarding of punishment under section 10(3) of the Ordinance is concerned, the appellant is claiming Mst. Nasreen Khatoon, daughter of the complainant as his wife on the basis of compromise, which is being denied by the complainant but the latter admitted having agreed to give the hands of certain ladies in the previous litigation of abduction of Suffiya Bibi by the son of the complainant. We are not inclined to decide the issue of compromise in any manner. The case of the appellant is that Mst. Nasreen Khatoon, daughter of the complainant was his legally-wedded wife and reliance was placed on Nikahnama dated 28-6-2000, which has not been challenged by Mst. Nasreen Khatoon.
11. At one stage, the present appellant filed a suit for restitution of conjugal rights against Mst.
Nasreen Khatoon, which was dismissed on 28-11-2002. Thereafter, the appeal filed by the appellant met the same fate. In this suit for restitution of conjugal rights, issue was also framed that as to whether Mst. Nasreen Khatoon was wife of the petitioner and the finding of the Family Court was in the negative. The appellant filed an appeal against this order of the Family Court but the same was dismissed. In view of this, the learned trial Court held that since there was no valid marriage between the parties; the appellant was guilty of Zina and sentenced to twenty-five years' R.I. Under section 10(3) of the Ordinance with thirty stripes.
12. Ahmad Khan, appellant was examined under section 342, Cr.P.C. With a plea that the complainant gave the hand of Mst. Nasreen Khatoon to him in a compromise where his sister was abducted by the son of the complainant. Whatever may be the case, there is a finding of the Family Court in suit for restitution of conjugal rights that the appellant failed to prove that Mst.
Nasreen Khatoon is his wife. On these premises, the appellant was convicted and sentenced as above.
13. We have gone through the record and evidence and are of the view that the sentence passed by the trial Court against the appellant under section 10(3) of the Ordinance is highly excessive in view of the backgrounds and history of the case. Mst. Suffiya Bibi, sister of the appellant herself was eloped by the son of the complainant and this fact is admitted.
15.(sic) Keeping in view the entire backgrounds of the case, we are of the view that the sentence of twenty-five years may be reduced to ten years' R.I. .
16. With the above modification in the judgment of the trial Court, the appeal is accepted partially.
17. Sabir Khan, complainant has filed Criminal Appeal No,247/L of 2003 against the same judgment, dated 5-7-2003, whereby nineteen respondents were acquitted by the trial Court.
18. We have partially accepted the appeal of Ahmad Khan. Furthermore, no case is made out against the acquittal of respondents including females and some of the respondents, who were earlier in criminal litigation in case of abduction by the son of Sabir Khan complainant.
19. In view of above, Criminal Appeal No,247/L of 2003 against acquittal of respondents is dismissed.