' SAEED-UR-REHMAN FARRUKH, J.--- This appeal is directed against the judgment dated 3-3-2005 passed by learned Additional Sessions Judge, Burewala, District Vehari, whereby the appellants were convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called "the Ordinance") and sentenced to undergo four years' R.I. Each with a fine of Rs,10,000 each or in default to further suffer six months' S.I. Each. Ghulam Mustafa appellant was also convicted under section 10(3) of "the Ordinance" and sentenced to seven years' R.I. With fine of Rs,20,000 or in default to further undergo two years' R.I. The benefit under section 382-B, Cr.P.C. Was extended to them.
' Muhammad Siddique and Shoukat Ali co-accused of the appellants were acquitted by the learned trial Court, Malik Ali having been declared proclaimed offender, during the course of trial.
2. The background of the case is as under; on 7-10-2001 Muhammad Moeen complainant (P.W.2) made a statement (Exh.P.B.) before Muhammad Aslam Sub-Inspector (P.W.8) in Chak No, 231/E.B., alleging that his wife Mst. Haleema Bibi (P.W.3) had been abducted by Ghulam Mustafa alias Mutti, Ghulam Rasool alias Nanha appellants and one Shaukat at gun-point and forcibly taken in a car to Adda Quarter. The alleged motive for the crime was that Mst. Irshad Bibi daughter of Muhammad.
Siddique had been abducted 15/16 days earlier and the accused in the said case suspected that Mst. Haleema Bibi was responsible for the said occurrence.
3. After registration of the case, the accused were arrested and police submitted challan against four persons i,e, the two appellants and two others namely Muhammad Siddique and Shaukat under sections 16 and 10 of "the Ordinance" read with section 109, P.P.C. They denied the correctness of the allegations levelled in the charge-sheet and claimed trial.
4. At the trial, the prosecution produced, in all, nine witnesses, out of whom the statements of Hedayat Ullah Head Constable (P.W.1), Muhammad Iqbal Constable (P.W.5), Muhammad Rafi Head Constable (P.W.6) are not material, being formal in nature.
' Muhammad Moeen complainant entered the witness-box as P.W.2 and deposed about the alleged occurrence, as divulged by him in the F.I.R. According to him he was going towards Chak No,239/E.B. On the fateful day to attend Punchayat with regard to the abduction of daughter of Muhammad Siddique. While he was passing in front of the house of Muhammad Siddique he was called by him inside the Baithak. Muhammad Siddique pressed him to make disclosure about the whereabouts of his daughter failing with his (witness) wife and daughter would be abducted.
' He went on to state that after coming out of the Baithak he went towards metalled road and found his wife missing there. Abdul Karim (P.W.4) and Khalid (not produced) informed him that they had seen the three appellants Ghulam Rasool, Ghulam Mustafa, Shaukat Ali, variously armed forcibly abducting Mst. Haleema Bibi by putting her in a red colour car towards Adda Quarter. He was proceeding towards the police station when Muhammad Aslam Sub-Inspector met him in Chak No,231/E.B. Who recorded his statement leading to the registration of the case.
' During cross-examination he conceded that Abdul Karim was cousin of his wife while Khalid was his son-in-law. Abdul Karim was resident of Chak No,30/K.B. Which was at a distance of 12/13 miles from his Chak i,e, No,231/E.B. He conceded that he and his wife were accused in a case F.I.R. No,345 of 2001 registered at Police Station Gaggo_ about abduction of Mst. Irshad Bibi a Punchayat had been convened at Chak No,239/E.B. And he and his wife were going to attend the same. His allegation that Muhammad Siddique threatened him that his wife and daughter would be abducted was found missing in his statement before the police (Exh.P.B.). Same was the position with regard to his allegation that, he met Khalid and Abdul Karim while he was going towards the metalled road.
' He admitted that Irshad Bibi, abductee of Crime No,345 of 2001, had not yet been recovered. He, however, denied the allegation that present case has been fabricated by him as a counterblast' qua. Case No,345 of 2001.
5. Mst. Haleema Bibi, the alleged abductee, appeared as P.W.3. She stated that she along with her husband Muhammad Moeen were passing in front of the Baithak of Muhammad Siddique when he called her husband. Her husband directed her to go ahead saying that he would join her. When she reached near the metalled road in Chak No,231/E.B. a red colour car driven by Malki stopped there.
Shaukat accused armed with .7.Mm rifle, Ghulam Rasool (appellant) armed with .30 bore pistol and Mustafa Khichi (accused) armed with .32 bore pistol emerged from the car and she was forcibly pushed in it. The car was driven towards 19 Malikan Wala. One Qurban Shah came out from the garden having some cotton in his hands. He put it in her mouth and tied her hands and eyes. She was then taken to a Dera where she was subject to Zina-bil-Jabr by Qurban Shah, Ghulam Rasool (appellant), Shoukat Ali and Mustafa Khichi (accused). Thereafter, the light was turned off and she was subjected to Zina-bil-Jabr twice/thrice by some unknown persons. On the second night she was subjected to beating with sticks by Qurban Shah, Shoukat Ali, Ghulam Rasool and Mustafa Khichi, coerced her to disclose the whereabouts of Mst. Irshad Bibi. She protested that she did not know anything about her on which chillies were put in her eyes and nose. After that, her body was burnt with acid and a pump was brought with which air was filled in her body. She was then made to board a car and it was after travelling some time that two police officials, per chance, met her on the road side. Aslam S.-I. Took her to police station and her statement was recorded. She was then brought to Burewala for medical examination. She claimed that at the time of recovery by the police she was immersed with blood.
' During cross-examination, she stated that on the fateful day she and her husband started for Chak No,239/E.B. To attend the Punchayat which was to be convened at the Dera of one Sardar Jat.
She conceded that Khalid was her Mammoo Zad (cousin). She was confronted with her statement made before the police wherein her assertion that she had gone to attend the Punchayat was found missing. Her plea that her husband had directed her to go ahead and he would follow her was also not recorded in the said statement. Likewise, her allegation that Ghulam Mustafa, Shaukat and Mustafa Khichi were carrying fire-arms at the time of her abduction was also not recorded in her statement. Same was the position about her assertion that her mouth was gagged with cotton and that hurt was caused to her on her knees. The allegation of commission of Zina by Shoukat Ali and Mustafa Khichi and some unknown persons was also found missing in her statement before the police (Exh.D.C.). Her assertion that on the second night she was given beating by Qurban Shah, Shaukat Ali, Ghulam Mustafa and Mustafa Khichi was also not recorded in the said statement.
' Perusal of the statement of Mst. Haleema Bibi P.W.3, read as a whole, showed that she was a liar and no reliance could be placed on it.
6. Abdul Karim P.W.4 deposed about having seen Mst. Haleema Bibi being forcibly abducted by the appellants and Mustafa Khichi in car while she was sitting on a Pulli near Village Chak No,31/E.B. This witness belonged to Chak No,30/KB, which was at a distance of 12/13 miles from Chak No,231/E.B. He tried to hide his relationship with Mst. Haleema Bibi as he claimed that she belonged to his brotherhood though Muhammad Moeen admitted that he was cousin of his wife. This witness was also confronted with material portions of his statement in Court vis-a-vis his statement before the police (Exh.D.A.). It transpired that he had made vast improvements qua his version before the police about the alleged occurrence. For instance, his assertion that Mst. Haleema Bibi was seen by him being taken away from near the Pulli by Shaukat Ali etc. In a car was not so recorded in his statement (Exh.D.A.).
' It is strange that this witness went to Chak No,231/E.B. Instead of Chak No,239/E.B. Where Punchayat was being convened. Be that as it may, he did not go there and he, on his own showing, stayed in Chak No,231/E.B. Overnight. No explanation is forthcoming for this action and the possibility that the story of Punchayat was mere concoction cannot be excluded.
7. Muhammad Aslam, S.-I., P.W.8 deposed that on 7-10-2001 Muhammad Moeen complainant appeared before him and made statement (Exh.P.B.) which was reduced into formal F.I.R. On 7-10- 2001. He recorded the statement of Mst. Haleema Bibi after her recovery and sent her to T.H.Q.
Hospital, Burewala for medical examination. On 20-10-2001 he arrested Ghulam Mustafa and Ghulam Rasool whereafter he was transferred from the said police station.
' During cross-examination, he admitted that on 7-10-2001 he had gone to Chak No,231/E.B. To investigate the case F.I.R. No,345 of 2001 regarding abduction of Mst Irshad Bibi. He also admitted that the accused nominated in the said F.I.R. Were Mst. Haleema Bibi and six others and that Ghulam Rasool appellant was cited as a prosecution witness.
8. Last witness produced by the prosecution was lady Doctor Mst. Afia Naz Alam W.M.O., P.W.9. She medically examined Mst. Haleema Bibi on 8-10-2001 and observed the following injuries on her person:-- "(i) A lacerated wound on left palm on its inner side at the route of left little finger measuring 4 c.m. x 0.5 c.m., x muscle deep.
(ii) A bruise on both buttocks on the lower back and on the back of upper thighs, on the middle of thighs measuring the area 40 c.m. x 50 c.m.
(iii) A contusion on front of left knee measuring 2 x 2 c.m.
(iv) An abrasion on front right knee measuring 2 x 2 c.m."
' There were no marks of violation on external genitalia. The doctor observed that the examinee was habitual of sexual intercourse. After going through the report of the Chemical Examiner she opined that Mst. Haleema Bibi had been subjected to sexual intercourse.
9. After conclusion of the prosecution evidence the statements of the appellants were recorded under section 342, Criminal Procedure Code. They denied the prosecution story in toto.
' Ghulam Rasool appellant, in reply to the question, as to why the case had been registered against him gave a detailed statement. He contended that Mst. Haleema Bibi was accused of Crime No,345 of 2001 registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for abduction of Mst. Irshad Bibi who his sister-in-law and daughter of his co-accused Muhammad Siddique, along with her father Khan, brother Fareed, Shahnaz sister-in-law and cousin Ashraf etc. Muhammad Moeen complainant, in conspiracy with P.Ws., got registered the instant case No,346 of 2001 against him and his co-accused so as to create defence qua the above case (F.I.R. No,345 of 2001). He tendered copy of the F.I.R. Of the said case (Exh.D .C.).
' He refused to avail the opportunity to lead defence evidence and also to enter the witness-box to depose on oath in support of his plea of innocence.
10. The statement of Ghulam Mustafa appellant under section 342, Criminal Procedure Code was similar to the statement of Ghulam Rasool.
11. It is not necessary to refer to the statement of Muhammad Siddique and Shoukat Ali under section 342, Criminal Procedure Code as they were acquitted by the learned trial Court.
12. I find merit in this appeal. I am not at all impressed by the testimonies of Muhammad Moeen P.W.2 (complainant), Abdul Karim (P.W.4) and Haleema Bibi (P.W.3) the alleged abductee.
According to Muhammad Moeen, while he was proceeding along with his wife Haleema Bibi towards Chak No,239/E.B. To attend the Punchayat regarding abduction of daughter of Muhammad Siddique he went into his Baithak on his call. This assertion, on the face of it, does not appeal to reason. Muhammad Moeen would be at daggers drawn with Muhammad Siddique who'was deeply aggrieved of abduction of his daughter and had already lodged a case of abduction against number of persons inclusive of his wife. It is highly improbable that Muhammad Moeen would have dared to go to his Baithak. This is all the more so because Punchayat had allegedly been convened in Chak No,239/E.B. To sort out the serious dispute about abduction of Mst. Irshad Bibi. His stance of staying in the Baithak of Muhammad Siddique with a direction to his wife Mst. Haleema Bibi to go towards Chak No,239/E.B. Cannot be accepted to be true.
13. Mst. Haleema Bibi asserted that she stopped at Pulli to await Muhammad Moeen so as to go along with him to Chak No,239/E.B. It is from there that she was allegedly abducted by the appellants and others. The prosecution, in order to lend support to its story of abduction of Mst.
Haleema Bibi, from the Pulli, produced Abdul Karim (P.W.4) who allegedly saw her being abducted while she was sitting there. He has been exposed to be a liar. He was closely related to the complainant party being cousin of Mst. Haleema Bibi. He, however, vainly tried to hide his relationship and deposed that she was from his brotherhood. He belonged to Chak No,30/K.B.
Which is admittedly at a distance of 12/13 miles from Chak No,231/E.B. As per, his version, he was proceeding towards Chak No,239/E.B. To attend the Punchayat. Question arises as to why he did not go direct to Chak No,239/E.B. Instead of coming down to Chak No,231/E.B. No satisfactory explanation is forthcoming in this behalf from the side of the prosecution.
' During cross-examination the witness admitted that he did not go to Chak No,239/E.B. And stayed overnight at Chak No,231/E.B. Why did he change his mind to attend the Punchayat is again a mystery. The only logical conclusion that could be drawn from these facts/ circumstances is that this witness was brought forward by the prosecution solely with a view to give support to its version of abduction of Mst. Haleema Bibi by the appellants and others.
14, The alleged victim Mst. Haleema Bibi is equally unreliable. To begin with, she was an accused in the abduction case of Mst. Irshad Bibi who has not been traced out so far despite lapse of 15/16 days and the gravity of situation had heightened with the passage of time. Perusal of her statement showed that she levelled reckless/false allegation of not only Zina-bil-Jabr but also torture against the appellants and others. Her allegations stood contradicted by the medical evidence. She allegedly received beating at the hands of Qurban Shah etc. With sticks. There were no injuries found on her body which could be said to be caused with stick. She alleged that chillies were put in her eyes and nose. Lady doctor did not notice any injury to her eyes and nose.
' That is not all, She also alleged that her body was burnt with acid. No acid burns were detected on her body by the Lady Doctor.
15. Mst. Haleema Bibi claimed that she was subjected to Zina-bilJabr by number of persons i,e, Qurban Shah, Ghulam Rasool (appellant), Shoukat Ali and one Mustafa Khichi, besides some other unknown persons. The allegation of rape upon her by Shoukat Ali, Mustafa Khichi and other unknown persons was found missing in her statement before the police (Exh.D.C).
' It is significant to note that the so-called unknown persons were not challaned by the police in this case.
' The assertion of the prosecution that after being subjected to rape and torture at a Dera by the appellants and others Haleema Bibi was put in a car and while she was travelling therein two police officials met her, per Chance, on the road, on the face of it, appeared to be preposterous.
There is no evidence on record apart from her bare assertion that the police officials stopped the cal and took her out of the clutches of the accused.
16. There is yet another circumstance which makes the prosecution case highly doubtful. Neither the fire-arms, allegedly wielded by the accused at the time of abduction of Mst. Haleema Bibi nor the car in which she was allegedly abducted were recovered during investigation. This fact also goes to show that Mst. Haleema Bibi was never abducted and question of her being subjected to rape and torture did not arise at all.
17. Last but not the least, there is no evidence, whatsoever, on record to show that Halima Bibi was recovered by the police while riding a car, in the captivity of the accused. All that Muhammad Aslam, S.-I. (P.W.8) said was that he recorded her statement on 8-10-2001 when she was recovered.
No Police Officer/official who allegedly intercepted the car and got released the lady from the clutches of the accused was produced in Court to support the prosecution story of her recovery.
One can safely conclude, in the absence of evidence, apart from bare word of Haleema Bibi, that she was never abducted and such question of her recovery did not arise.
18. There is great deal of force in the defence plea that the present case was set up by Muhammad Moeen in collaboration with Mst. Haleema Bibi and Abdul Karim by way of counterblast to the abduction case of Mst. Irshad Bibi which stood registered earlier. It is in the prosecution evidence that the Police Officer had gone to Chak No,231/E.B. To investigate the said abduction case registered vide F.I.R. No,345 of 2001 and it was in the village that Muhammad Moeen approached him and got the present case registered vide F.I.R. No,346 of 2001.
19. The learned trial Judge acquitted Muhammad Siddique and Shoukat Ali co-accused of the appellants though there were definite allegations of serious nature against them as well. The prosecution story thus stood partially disbelieved.
20. For what has been stated above, I am of the clear view that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. The impugned judgment is not sustainable and the same is hereby set aside with the result that the appellants are acquitted.
They shall be released from jail, forthwith, if not required in connection with any other case.
21. These are the reasons for the short order dated 12-9-2005. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.