' SAEED-UR-REHMAN FARRUKH, J.--- This appeal is directed against the judgment dated 17-9-2003 passed by Additional Sessions Judge, Kallurkot, District Bhakkar, whereby both the appellants were convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called "the Ordinance") and sentenced to five years' R.I. Each and five stripes each with fine of Rs,5,000 each and in default to undergo one year's S.I. Each. Haq Nawaz appellant was also convicted under section 10 of "the Ordinance" and sentenced to fourteen years' R.I. With fine of Rs,20,000 and in default to undergo further three years' S.I. And 15 stripes. Muhammad Ameer, appellant was also convicted under section 10 of "the Ordinance" and sentenced to ten years' R.I.
With fine of Rs,20,000 and in default to undergo further three years' S.I. And 10 stripes.
2. Facts, in brief, are; Elahi Bakhsh P.W.1 went to Police Station Kallur Kot on 7-6-1995 with a complaint in writing Exh.P.A. (later on reduced into formal F.I.R. No,79) in respect of the alleged occurrence. His grievance was that his daughter Mst. Zainab Bibi aged about 15/16 years was called by Mst. Waziran out of her house at Isha Wela on 5-6-1995 in the presence of Muhammad Ramzan P.W.2. They followed her outside the house and saw in the light of the bulb Haq Nawaz and Muhammad Ameer appellant forcibly pushing Mst. Zainab Bibi in a whitish car. Mst. Waziran also occupied a seat in the car. It was driven towards Chandni Chowk. The complainant alleged that he demanded the return of Mst. Zainab Bibi from the relatives of the appellants, who initially promised to help, but, later on, refused to intervene in the matter. He alleged that the appellants had abducted Mst. Zainab Bibi for committing Zina Haram with her. After investigation, both the appellants_ were challaned to Court to face trial. The name of Mst. Waziran Bibi was placed in column No,2 of the challan.
3. In response to the charge framed against them, the appellants claimed innocence on which the learned trial Court directed the prosecution to lead its evidence.
4. Elahi Bakhsh P.W.1 entered the witness-box and deposed about the occurrence as narrated by him in his complaint to the police (Exh.P.A.). He was cross-examined at some length by the defence. He admitted that Muhammad Ramzan P.W.3 was his Khalazad and he was resident of Majukawala, which was at a distance of 10 miles from his house. He saw the car parked outside his house at a distance of 15/20 Karams. According to him, Mst. Waziran was mother of absconding accused namely Muhammad Ameer (arrested later on). He denied the suggestion that neither Haq Nawaz abducted Mst. Zainab Bibi nor he committed Zina with her. He admitted that the Investigating Officer opined Mst. Waziran to be innocent. In reply to the question, put on behalf of the Muhammad Ameer appellant, he stated that he did not know whether or not the statement of the abductee was recorded by the Magistrate.
5. Muhammad Ramzan P.W.2 deposed about having witnessed Mst. Zainab Bibi going out of the house of the complainant on the call of Mst. Waziran. He also deposed that he saw Mst. Zainab Bibi being forcibly put into the car by the two appellants, which was driven towards Chandni Chowk. He admitted that his house was situated at a distance of 10 miles and Elahi Bakhsh was his maternal- cousin. He claimed that he was staying in the house of Elahi Bakhsh one day prior to the occurrence.
6. Mst. Zainab Bibi, victim, aged 18 years appeared as P.W.3. She deposed that as she went out of her house to urinate on the fateful night the appellants caught hold of her and forcibly pushed her into a car and taken to Shah Alam. From there they took her to Kalwal and also to village Gadai.
Haq Nawaz appellant kept her at Karachi for 30 days. It was only when he became "short of money for expenses", he brought her back to Shah Alam. The police located them there and she was thus recovered. She claimed that her statement was recorded by a Magistrate.
' She was cross-examined at great length on behalf of the appellants. She deposed that village Shah Alam might be at a distance of 5 miles from her house. It took 24 hours to reach Karachi from her house by train. She saw police in the train. There were so many passengers also travelling in the train. She also conceded that there were many neighbourers in the vicinity, where she was kept by the accused. She, however, did not inform any one about the occurrence while travelling to Karachi or during her stay there. She deposed that her statement was recorded by the Magistrate vide Exh.P.F. Haq Nawaz remained in Karachi along with her while Muhammad Ameer left them. She denied the suggestion that Muhammad Ameer was working as labourer in Dera Ismail Khan.
7. Muhammad Ramzan P.W.4 deposed about his presence in the house of the complainant at the relevant time when Mst. Zainab Bibi went out from her house at the call of Mst. Waziran. He also witnessed Mst. Zainab Bibi being taken away in a whitish car by the appellants.
8. Dr. Nisar Hussain P.W.5 deposed that, on examination, he found Haq Nawaz to fit for sexual intercourse.
9. Lady Doctor Falak Rifat P.W.6 deposed that on 8-8-1995, she examined Mst. Zainab Bibi aged 15/16 years. She found that hymen was torn and tears were healed. Vagina admitted two fingers.
She took vaginal swa bs for detection of semen by the Chemical Examiner. In her opinion Mst.
Zainab Bibi was "habitual to sexual intercourse". She proved her medico-legal report .Exh.P.B.
10. Statements of Muhammad Khan Head Constable P.W.7, Ahmad Sher constable P.W.8, Rehmatullah constable P.W.10 and Muhammad Aslam Khan P.W.11 are immaterial, being formal in nature.
11. Mehr Mehmood Akhtar, Deputy District Officer, Revenue, Mianwali appeared as P.W.9 and deposed that on 7-8-1995 while posted as Judicial Magistrate, Kallurkot and he recorded the statement of Mst. Zainab Bibi vide Exh.P.F. After satisfying himself that she was making the said statement voluntarily. He passed order for sending her with her father.
12. Ahmad Nawaz A.S.-I. P.W.12 deposed about the investigation of the case conducted by him. We have perused his cross-examination and found that nothing useful could be gleaned therefrom by the defence.
13. On conclusion of the prosecution evidence, statement of bath the appellants were recorded under section 342, Cr.P.C.
Haq Nawaz appellant denied the correctness of the prosecution case. In reply to the question as to why he had been implicated, he merely alleged that the prosecution witnesses- were closely related to the complainant party and they had deposed against him due tb personal grudge and enmity. He neither opted to appear as his own witness under section 340(2), Cr.P.C. Nor led any defence evidence.
' Same was the stand of Muhammad Ameer appellant in his statement under section 342, Cr.P.C.
' Mst. Waziran (whose name was initially placed in Column No,2 of the challan) also pleaded innocence.
14. We have heard the learned counsel for the parties and perused the record with their assistance.
15. We find that the prosecution had failed to prove its case against Muhammad Ameer appellant beyond reasonable doubt. We are not satisfied, from the perusal of the evidence on the record, that he played any role, whatsoever, in -this incident. The prosecution appeared to have thrown the net too wide and roped him in beside his mother Mst. Waziran. It was highly improbable that both mother and son would have joined hands to entice away the girl from her house for illicit purpose.
16. The fact that Mst. Waziran was found to be innocent by the police lends support to this view. Mst.
Zainab Bibi did not level allegation against him of commission of Zina. There is no earthly reason as to why he would have accompanied Mst. Zainab Bibi and Haq Nawaz to Karachi and stayed there for one month without any ill motive. He is accordingly given benefit of doubt and acquitted. He shall be released from jail, forthwith, if not required in any other case.
17. However, we find that both Haq Nawaz and Mst. Zainab Bibi left their native village with evil intention. They went to various places and ultimately reached Karachi and lived there for one month.
' We find that it was in fact a case of elopement of Mst. Zainab Bibi with Haq Nawaz appellant. She, admittedly travelled by train to Karachi but she did not inform during the journey about the reason/cause of her travel. There were many neighbourers in Karachi but she did not intimate anyone about her alleged forcible stay there. There is plethora of case-law on the subject to the effect that in such-like situation, the offence committed by the culprit falls within the purview of section 10(2) of "the Ordinance". See Muhammad Tariq and another v. The State 1985 PCr.LJ 1058 and Habibullah and another v. The State PLD 1983 FSC 251.
18. It was a case of Zina-bil-Raza committed by Haq Nawaz appellant. Accordingly, his conviction under section 10(3) of "the B Ordinance" is set aside and he is convicted under section 10(2) of "the Ordinance" and awarded sentence of five years' R.I. With fine of Rs,5,000 and in default to undergo further three months' S.I.
' His conviction under section 16 of "the Ordinance" is set aside. Benefit of section 382-B, Cr.P.C. Is extended to him.