' HAZIQUL KHAIRI, C.J.--- By this judgment we propose to dispose of two appeals filed by appellant Umar Din being Criminal Appeal No,245/L of 2005 and appellant Muhammad Ishaq being Criminal Appeal No,259/L of 2005 whereby they have impugned the judgment, dated 4-7-2005 passed by the learned Additional Sessions Judge, Lahore, in which they were convicted and sentenced, under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, (hereinafter referred to as "the said Ordinance") to life imprisonment each, 10 stripes each and fine of Rs.50,000 each or in default to further suffer 3 months' S.I. Each.
2. Brief facts as appearing from the record are that on 6-5-1999 at 7-00 a.m., Mst. Amina Bibi (P.W.4) sister of complainant Shahbaz Khan (P.W.2) told him that her daughter Mst. Sadaf victim aged 15/16 years (not produced) was missing from the house in the night and had not returned.
When he went out in search of her, Abdul Hameed P.W. (not produced) and Masood Akhtar (P.W.3) informed him that at about 4-00 a.m. While deboarding at Lidher Bus stop from Bhatta Chowk, they saw that Muhammad Ismail, Muhammad Ishaq, Yagoob, Ibrahim, Imran and Mst. Nusrat Bibi accused along with Mst. Sadaf were standing at the said bus stop. According to the complainant the victim was enticed away by Ismail etc. For committing Zina with her.
3. Subsequent to the registration of F.I.R. On 14-5-1999 the alleged abductee Mst. Sadaf Bibi appeared before the police and she got her statement recorded on oath under section 164, Cr.P.C.
By a Magistrate wherein she implicated Ismail, Muhammad Yagoob, Umar Din and Muhammad Ishaq for her abduction. During investigation by police appellants Muhammad Ishaq and Umar Din were found guilty and their challan was submitted for trial. Formal charge against them fdr commission of offence under section 11 of "the said Ordinance" was made to which they pleaded not guilty and opted for trial.
4. During trial the prosecution examined Dr. Lubna Naseem (P.W.1) who medically examined abductee Mst. Sadaf Bibi and produced MLR, P.Ws. Khurshid Ahmad C/3144, Muhammad Arham, S.- I., Muhammad Riaz, H.C. Muhammad Jamil constable and Sher Muhammad Pasha, S.-I. Were formal witnesses and their depositions relate to investigation process of the recording of F.I.R., despatch of swa bs for chemical examination and of other formal nature and they had not been cross-examined by the defence.
5. The testimony of Shahbaz Khan complainant (P.W.2), Masood Akhtar Khan (P.W.3) and Mst.
Amina Bibi (P.W.4) relates to the factum of abduction of Mst. Sadaf Bibi by appellants Muhammad, Ishaq and Umar Din. While P.W.4 deposed that when she got up in the morning her daughter Sadaf Bibi was missing , she informed P.W.3 her brother about it who went out- in search of her and was told by Masood Akhtar (P.W.3) and Abdul Hameed (not produced) that while they deboarded a wagon coining from Bhatta Chowk, they saw the appellants Muhammad Ishaq, Muhammad Yagoob, Muhammad Ibrahim, Muhammad Ismail (but not appellant Umer Din) with Mst. Nusrat Bibi at the bus stop at about 4-30 a.m. Masood Akhtar (P.W.3) confirmed this position in his deposition.
Mst. Amina Bibi (P.W.4) testified that the appellant had been visiting her house she came to know through Hameed and Magsood that they had seen Mst. Sadaf Bibi along with the ,appellant Ishaq, Mst. Nusrat Bibi and Muhammad Yagoob. What is pertinent to note is that P.W.2 Shahbaz Khan, and P.W.3 Masood Akhtar Khan who saw the victim along with the accused persons at the bus stop were not cross-examined on this point and were simply asked if the victim had died to which they replied in affirmative. Similarly P.W.4 Mst. Ameeran Bibi, mother of the victim was not cross- examined at all so also other witnesses produced by the prosecution although opportunity was provided to the appellants. Abductee Mst. Sadaf Bibi in her statement under section 164, Cr.P.C. Had implicated accused Umar Din for her abduction along with other co-accused, namely Muhammad Ismail, Muhammad Yaqoob and Muhammad Ishaq.
6. According to learned counsel for the parties also the abductee died during the trial. However, her statement on oath under section 164, Cr.P.C. Was recorded by Mr. Muhammad Usman Ghani (P.W.11) after she came back. She stated as under:-- "On 5-5-1999 at about 9/9-30 p.m. I was watching T.V. In my house when there was a knock at our door. I opened the door because all others in the house were sleeping. Mst. Nusrat who is my neighbour asked me to accompany her to her house and on my inquiry she told me that she will let me know about it at her house. A car was parked in front of Nusrat's house. When I was passing by the car, Ishaq the brother-in-law (brother of Nusrat's husband) and Umar (Ishaq's friend) forcibly pushed me into the car and administered something whose smell made me unconscious. In the morning Ishaq was sitting beside me. He asked me to get married to him which I refused. He then served 'me tea, whereafter I again became unconscious. When I regained my conscious, I came to know that I was in a village and many persons were gathered around me. They told me that they had left me with my parents. Our village is near the other village."
7. Thus, there are two versions of the case before us. Admittedly there was no eye-witness to the abduction of Mst. Sadaf from her house. P.W.4 Amina Bibi, her mother found her missing from the house when she got up in the morning. Prosecution witness P.W. Masood Akhtar saw her in the company of accused persons at the bus stop on 6-5-1999 at 4-30 a.m. The version of Mst. Sadaf is that by deceit she was taken out from her house at 9/9-30 p.m. On 5-5-1999 by Mst. Nusrat, her neighbour, whereafter the accused took her away in a car by administering something the smell whereof Made her unconscious. Both the stories are poles apart and not only contradictory but also demolish one another on all material respects. If the first version is accepted then P.W.3 Masood Akhtar saw her in the company of accused at a public place but she raised no hue and cry sought help from him or others. It was held in the case of State v. Khuda Dad and another 2004 SCM R 425, that "simply by seeing the abductee in the company of accused) would not attract the ingredients of section 11 of the Ordinance". Again nowhere in her statement under section 164, Cr.P.C. She has involved any of the appellants for Zina, however, appellant Ishaq hack asked her if she would marry him. The proposal of marriage would not by itself come within the ambit of section 11 of the Ordinance unless accompanied by force or coercion which we do not find in her statement under section 164, Cr.P.C.
8. Learned counsel for the appellants Mr. Ashraf Ali Javed brought to our notice the statement of Mst. Sadaf on oath and stated that the appellants were not provided the opportunity of cross- examining her in terms of section 164 (1-A), Cr.P.C. Since section 164, Cr.P.C. Does not contemplate statement on oath it was the duty of the learned Magistrate to have told her so but he did not. As regards providing opportunity to the accused to cross-examine her it is not a mandatory requirement as the accused may not be available at the relevant time. Failure to do so will not vitiate the confession or its evidentiary value. It was further urged by him that Mst. Sadaf being 16 years old was an adult within the meaning of section 2 of the Ordinance and had attained puberty.
In the case of Abdul Jabar v. The State PLD 1991 SC 172 (Shariat Appellate Bench), it was held that a female may attain puberty even earlier. There were no mark of violence or injury on her external genitalia nor there were any stains of semen on her body or clothes. The swabs were stained with semen but there was no matching or grouping.
9. In view of what is stand above, the prosecution case has been torn apart by its own P.Ws. And the benefit thereof shall resultantly go to the appellants leading to their acquittal. We are, therefore, unable to endorse the impugned judgment passed by the learned Additional Sessions Judge, Lahore, and set aside the conviction and sentences of both the appellants, namely Umar Din and Ishaq with direction to jail authorities to release them if they are not required in any other case.