This appeal is directed against the judgment dated 27.5.2006 whereby co-accused Mst. Aasia Bibi has been acquitted and accused Ayyub Masih (the appellant) has been convicted under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to three years'
R.I. and a fine of Rs, 10,000/- and further imprisonment of two months' Si. in default of payment of fine.
2. The facts of the case, according to the complaint lodged by Muhammad Arif at P.S. Nowshera Virkan District Gujranwala, on the basis of which the FIR was recorded is that he is resident of Chuheywala, that his daughter Mst. Aasia Bibi was married to one Bashir son of Ham Din with whom she had two daughters, that about seven days prior to lodging the complaint, he went to see her daughter in the house of her husband but she was not present in the house and her mother-in-law Hussain Bibi informed him that one Mst. Nasreen wife of Malik Masih had taken her with her on the pretext of purchasing vegethbles. The complainant further reported that after some time he came out of the house and saw that Tariq, Malik and Ayyub Masih sons of James Masih, James Masih himself and Mst. Nasreen Bibi were forcibly making his daughter board a car, and at this stage his son-in-law Bashir also came and they both tried to stop the abductors from abducting Mst. Asia Bibi but the culprits resisted, threw them on the ground and fled away in the car. He then tried to recover her daughter but the accused persons first made false promise to return her but then refused whereupon he lodged this report on 3rd June, 2003.
3. Learned Additional Sessions Judge, Gujranwala charged both the accused under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and proceeded to try them during the course of which the prosecution examined as many as nine witnesses. P.W.I Dr. Ghulam Mustafa is the Senior Medical Officer of Rural Health Centre Nowshera Virkan who had examined Yaqub son of James Masih, aged about 27 years and in his opinion he was fit to perform sexual intercourse. It is, however, not clear who is this Yaqub son of James Masih because name of the appellant is Ayyub Masih. The next witness P.W.2 Saifullah is the Head Constable who stated that after performing medical examination of Mst. Aasia Bibi, lady doctor of Tehsil Headquarter Kamonke handed over to Muhammad Boota S.I. a sealed phial and sealed envelope in his presence. P.W.3 Muhammad Arshad Head Constable deposed that on 3.6.2005, Muhammad Boota had handed him over a sealed parcel and a phial for keeping in police malkhana for safe custody.
He handed over these articles to Shakeel Ahrnad Constable for onward transmission to the office of Chemical Examiner, Lahore. P.W.4 Dr. Nasreen Akhtar, W.M.O. of the District Headquarter Hospital Kamonki had examined Mst. Asia Bibi on 21.6.2005, She did not find any marks of violence on her body and found Mst. Aasia Bibi with five-month old pregnancy as per her own statement. In her opinion, Mst. Aasia was not "subjected to sexual intercourse recently". P.W.5 Constable Shakeel Ahmad was posted at P.S. Nowshera Virkan on 28.6.2005 when Muhammad Arshad Constable handed over to him a sealed envelope and a phial for their onward transmission to the office of the Chemical Examiner, Lahore and he deposited the said articles in his office. P.W.6 Muhammad Bashir is the husband of co-accused Mst. Aasia Bibi who was acquitted by the learned trial Court and P.W.7 Muhammad Arif is the complainant and father of Mst. Aasia Bibi. Since these are the only material witnesses in the case, their evidence shall be shortly taken up in detail. P.W.8 Muhammad Boota is the Investigating Officer. This is all the evidence recorded by the prosecution in support of its case.
4. In her 342 Cr.P.C. statement Mst. Aasia Bibi denied that she was abducted by any of the persons named in the complaint or FIR. She stated that she was subjected to torture from her childhood by her step mother and when she became young her father Muhammad Arif sold her to Bashir who married her. She further stated that Bashir was already married and father of two children and she was treated cruelly at the hands of her in laws for several years. She accused her mother-in-law of being involved in immoral activities in which she tried to induct Mst. Aasia and on her refusal she was locked in the house. She further stated that she was rescued by her father who brought the police and a false case was registered against her at the behest of her in-laws. She further stated that her father was cruel, that he had sold the kidney of her mother on the asking of her step- mother. She further stated that even while she was in jail, her father used to come to her and asked her to go to her in-laws. In short, her statement is that she never went with any body that she remained throughout in the house of her husband where her father had brought the police and she was taken into custody and this case had been concocted against her.
5. Appellant Ayyub Masih in his statement under Section 342 Cr.P.C. alleged that Mst. Hussain Bibi mother-in-law of co-accused Mst. Aasia, had borrowed an amount of Rs, 1,50,000/- from him and when he demanded the same back from her, she was annoyed and due to this grudge she falsely got her involved in the case. The defence has no evidence.
6. I have gone through the evidence with the help of the learned counsel for the appellant and the State counsel. As has been discussed by me above, the only two witnesses who deposed on the merit of the case and who claimed to be the eye-witnesses of the incident are P.W.6 Muhammad Bashir, the husband of acquitted accused Mst. Aasia and P.W.7 Muhammad Arif, her father.
According to the version emerging from the deposition of P.W.6 Muhammad Bashir, he had gone on his work and when he came back to his house in the evening he saw a vehicle parked on the road and he parked his cycle near that vehicle. He saw Tariq, Ayyub, Malik and Mst. Nasreen who were trying to make his wife Mst. Aasia sit in the vehicle. Then his father-in-law Arif also reached there and they both tried to prevent the escape of Mst. Aasia but the accused persons fled away in the car alongwith Mst. Aasia. He further stated that he could not say whether Mst. Aasia went alone with the accused persons herself or she was taken away forcibly but further stated that the accused persons had abducted his wife. In cross-examination he denied that Mst. Aasia did not want to live with him. In cross-examination he stated that he knew appellant Ayyub Masih and others nominated in the FIR for the last 4/5 years as the house of appellant Ayyub Masih was at a distance of only one house from his own house, (perhaps he wanted to say that only one house intervened between his house and the house of appellant Ayyub). In cross-examination he further stated that his father-in-law had told him that his wife had been abducted in a vehicle which was of white colour. He denied that, Mst. Aasia was not living happily in his house or that he used to beat her. He conceded that he had two daughters aged about five years and three years from his previous wife. He denied that he confined his wife Mst. Aasia in a room on her demand of divorce.
He also denied the suggestion that his mother had borrowed some money from appellant Ayyub and when the appellant demanded that the same be returned to her, he was involved in:this case.
P.W.7 Muhammad Arif the complainant and father of Mst. Aasia, deposed that he had gone to see his daughter Mst. Asia in Nowshera Virkan and when he reached there at about 2 or 2.30 p.m. Mst.
Nasreen came in the house and took her outside the house and when he himself came out of the house after 2 or 3 minutes he saw that Mst. Nasreen, Tariq and Ayyub were standing outside and at the same time his son-in-law also reached there. He further stated that accused persons had abducted his daughter forcibly in a vehicle whereupon he and his son-in-law raised hue and cry but to no avail. He further stated tliat he had been demanding return of his daughter but the accused persons did not accede to his request whereafter he submitted application for registration of this case. The first thing which strikes me is that the complaint was lodged on 3.6.2005 and in it the incident is said to have occurred seven days prior thereto. However, in his deposition in the Court the complainant states that the incident occurred on 3.6.2005 itself. Further, Muhammad Arif stated that when he came out of the house he saw appellant Ayyub and his other accomplices, which were not challaned and,given up by the police, were trying to board Mst. Aasia in a car. This gives rise to an inference that his son-in-law came there afterwards. On the other hand, that son-in-law appearing as P.W.6 states that he had first reached on the scene of occurrence which is the road in front of his house, and his father-in-law also reached there which suggests that the father-in-law reached there after he (Muhammad Bashir) had reached there.
There are two very material contradictions. Besides, the story made out by the prosecution seems to be highly improbable. The complainant lives at a distance of six kilometers from the house of Muhammad Bashir. He reaches the house of Muhammad Bashir and in his very presence Mst.
Nasreen dares to take Mst. Aasia out of the house and then all the accused persons wait outside the house for 2 or minutes, only to be discovered by the complainant and Muhammad Bashir. If Mst. Nasreen had entered the house of Mst. Aasia with the intention of taking her out with the intention that she be abducted and found her father in the house, she (Mst. Nasreen) would have, in all probability, postponed the venture or, in the alternative, the accused would have whisked away Mst. Aasia immediately instead of waiting outside the house for two or three months. It is highly unlikely that Mst. Nasreen would have dared to ignore the presence of complainant Arif in the house and had taken Mst. Aasia with her in his presence. Besides, common sense demanded that if complainant Arif had come to the house of Mst. Aasia to meet her, he would have enquired from Mst. Nasreen and Mst. Aasia as to where they were going but there is nothing to suggest that he asked any of them such question. Moreover, if Mst. Aasia had been taken away in this manner, complainant Arif and P.W Bashir would have given hot pursuit to the accused but the evidence of the two persons shows that they did just nothing during those crucial moments, making it possible for Mst. Aasia and the culprits to escape in' the car. It is also worth noticing that whereas Mst.
Nasreen, Tariq Malik, Ayyub Masih and Jamil Masih' are nominated in the F.I.R it is only the appellant who was challaned in the Court alongwith Mst. Aasia. This suggests that the story as made out by PWs Arif and Bashir was not found plausible by the Investigating Officer. Complainant Arif.also stated that he had referred the dispute to a punchayat and when the punchayat could not help, he filed the complaint but he did not give either in the complaint or in his deposition the names of the members of such punchapt and did not examine any of them in the Court which suggests that the incident of abduction of Mst. Asia was not referred to any punchayat and when complainant Arif stated in his deposition that the incident occurred on 3.6.2005, the date on which, he reported the matter to the police, the reference of the dispute to the punchayat simply vanishes in the thin air. In all probability Mst. Aasia had gone away either from the house of her husband or from the house of her father out of her own free will and since P.W.8 Muhammad Boota, the Investigating Officer, does not state that they were both avrested when they were together also makes it improbable that she had run away with the appellant. The Investigating Officer also stated in cross-examination that he added the offence under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, on the basis of interrogation of the accused as well as the investigation conducted in the village. If this was the position, some persons of the village would have been material witnesses to bring home the guilt of the appellant but no such witness has been examined by the prosecution.
In his cross-examination, the Investigating Officer further conceded that it is correct that in the last zimni the date of arrest of accused Ayyub has been written as 20.6.2005 whereas date of Mst.
Aasia' Bibi as 21.6.2005". Thus the arrest of the two accused together and from the same place becomes further suspect.
7. As I have noted in the earlier part of the judgment, the learned trial Court had framed the charge only under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and vide, the impugned judgment both the accused had been exonerated of this charge and acquitted of it.
In the words of 'the learned trial Judge himself "the prosecution case as far as offence under Section 10(2) of the Ordinance is concerned, has not been proved against both the accused, therefore, both the accused are acquitted of the charge under Section 10(2) of the Ordinance". He, while acquitting accused Mst. Aasia under Section 16 of the Ordinance, convicted appellant Ayyub on the basis of the evidence which appears to be highly suspect. Besides, the appellant had never been charged under Section 16 of the Ordinance as would appear from the charge sheet. No doubt, even the statement of complainant is sufficient to bring home the guilt of the accused because in such matters outside witnesses may not be available, as observed by the learned trial Judge in the impugned judgment but the statement of the complainant must be such that it does not suffer from material infirmities and contradictions which is the case in this appeal.
8. In view. of these observations, I am not satisfied that the prosecution had proved the guilt of the appellant beyond all shadow of doubt. I would therefore set aside the conviction and sentence of the appellant and accept this appeal. The appellant be released forthwith if not required in connection with any other case.