' HAZIQUL KHAIRI, C.J.--- Appellants Muhammad Nazir and Muhammad Jahangir have impugned judgment, dated 16-3-2004, passed by the learned Additional Sessions Judge, Chiniot, District Jhang vide Criminal Appeal No,102/L of 2004 whereby the appellants were convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the said Ordinance") and sentenced to life imprisonment each with fine of Rs,5,000 each and in default thereof to further suffer 3, months' S.I. Each. Both the appellants were also held guilty of gang rape under section 10(4) of "the said Ordinance" and sentenced to death each. The appellants were entitled to benefit of section 382-B, Cr.P.C.
2 . Briefly facts as per F.I.R., dated 14-1-2002 are that on 25-12-2001 the complainant Syed Mukhtar Hussain Shah and his wife Mst. Manaza Majeed (P.W.3) had gone to the house of appellant Nazir and sitting in the Baithak when accused Mst. Bagman, Mst. Zuhra and Mst. Shehnaz who were also present in the house took his wife to the fields for easing themselves. While they were in the fields, appellants Nazir, Bashir, Jahangir and accused Munir armed with fire-arms and two unknown persons standing there with Hilux Dala forcibly dragged and abducted the complainant's wife Mst.
Manaza Majeed with intention to commit Zina. On her abduction she raised hue- and cry whereupon the complainant rushed towards the place of occurrence where Muhammad Aslam (P, W.2) and Muhammad Amin (not produced) witnessed the abduction. The complainant along with P. Ws. Approached the accused persons to return his wife but the same was of no avail. On 13-1- 2002 the matter was reported to police and F.I.R. Was registered on 14-1-2002.
3. During investigation ten persons namely Bashir Ahmad, Shabbir Ahmad, Munir Ahmad, Mst.
Bagman, Mst. Zuhra Bibi, Mst. Shahnaz, Shera, Nazir, Jahangir and Tassawar Hayat were also found involved in the crime and charge-sheeted but later on they were either acquitted for want of evidence or exonerated by the complainant.
4. The appellants denied the charge under sections 11 and 10(4) of "the said Ordinance" and claimed trial. The prosecution produced as many as 12 witnesses to prove its case.
5. P.W.8 Ehsan Nawaz, A.S.-I. Conducted the investigation. He visited the spot, prepared rough site plan, received copy of Nikahnama, recorded supplementary statement of complainant wherein names of the unknown persons were provided as Tassawar son of Manak and Bashir son of Dossa to him He recovered on 24-1-2002 the abductee Mst. Manaza Majeed from Feroz Wattoan and on 25-1-2002 he got her medically examined and thereafter produced her before the Illaqa Magistrate for recording her statement under section 164, Cr.P.C. He arrested appellants Nazir and Jahangir on 28-1-2002 and got them medically examined by the M.O. On 31-3-2002 on the pointation of appellant Nazir he recovered revolver .32 bore and on the pointation of appellant Jahangir recovered a gun. He found accused Mst. Shahnaz and Mst. Zuhra Bibi and the appellants guilty of the offence, however, Shera was declared innocent. The remaining accused persons were declared as P. Os .
6. P.W.1 Syed Mukhtar Hussain Shah, complainant, in his statement repeated what he had stated in F.I.R. He produced his Nikahnama with Mst. Manaza Majeed which was secured through recovery memo. Attested by the witnesses. In cross-examination he stated that he had known the appellant Nazir since the days of his forefathers and that both the appellants are real brothers. In his marriage ceremony his brother Mujahid or Inayat stood as Wakeel for Manaza. He denied that Nikah of Manaza had taken place with his brother Inayat and Nikah was performed by the appellant Nazir. He heard the hue and cry of Manaza at a distance of 100 feet from Baithak. A lot of people were attracted and gathered after hearing the hue and cry. He admitted that in his application to police nowhere he had mentioned that he approached the appellants for the return of abductee. He was unable to tell the names of Nazir's second wife, his children and his Bhabhi. He was also not aware when brother of Nazir was married. Nazir, Jahangir, Munir and Shera were dragging Mst. Manaza Majeed into the wagon whereas Shera was present near the wagon. The two unknown accused persons had also assisted them in dragging the abductee. The Dalla was opened and the abductee was put on the back side of it. It had a window and a door on the rear side. Aslam (P.W.2) and large, number of people of the vicinity were present at the time of occurrence. On the following day of the occurrence he went to the accused persons at their Dera where Shera, Shabbir and Munir met him. His wife was not there. The other accused persons were also not there. He was unable to tell the name of the Mohalla from where abductee was recovered.
7. P.W.2 Muhammad Aslam deposed that on 25-12-2001 he along with his tenant Muhammad Amin (since given up) was present at Mauza Pitraki where he found appellants Nazir, Jahangir and Munir and Shabbir along with two unknown persons armed with deadly weapons near a vehicle. Shera accused was also proceeding towards the vehicle. He saw Mst. Zuhra, Mst. Shahnaz and Mst.
Bagman Bibi brought a woman with them whereas Nazir and Jahangir, appellants dragged the said woman into the wagon. She raised hue and cry. Since the accused persons were armed with deadly weapons, the complainant and witnesses did not try to intervene. Next day the complainant along with witnesses approached the accused persons and asked them to return the abductee.
They were approached time and again by the complainant but they refused to return the abductee. The complainant produced his Nikahnama before the police. In cross-examination he stated that he had seen the occurrence at the road but he did not remember as to whether any standing crop was there or not. The wagon was parked at the distance of 1000 feet from the Baithak of Nazir. He was not aware who was driving the wagon. Mst. Shahnaz, Mst. Zuhra and Mst.
Bagman Bibi did not accompany other accused persons.
8. P.W.3 Mst. Manaza Majeed, the victim, deposed that on 25-12-2001 she along with her husband Mukhtar Hussain Shah went to the house of appellant Nazir in Rawalpindi. While she was in the Baithak of the house she was taken into room inside the house and after taking the meal Mst.
Shahnaz, Mst. Zuhra and Mst. Bagman took her to field to ease themselves. There Bashir, Nazir, Jahangir, Munir and Shera along with two unknown persons, all armed with deadly weapons, dragged her into a wagon. In the course of dragging she sustained abrasion on her knees and elbows. They took her to Dera where appellants Jahangir and Nazir committed Zina with her.
Thereafter they took her to some other place where Tassawar also committed Zina with her. They took her to different places where they used to commit Zina with her turn by turn. On her resistance appellant Jahangir hit her with a hot iron rod. She was recovered by the police. Her statement was recorded by the Magistrate under section 164, Cr.P.C. In cross-examination she stated that she was matriculate. She exonerated Bashir and Tassawar of Zina. Prior to occurrence she never visited the house of appellant Nazir. She saw her husband from the wagon who was 15/20 yards from there.
She was not in her senses, therefore, she did not know the distance between the place of occurrence and the house of Nazir. The ladies took her to a place about 2/3 miles from her house to fulfil the natural pursuits. She was dragged into a two door vehicle through the left side gat. She admitted that the raiding party consisting of 20/25 officers had recovered her. The raiding party jumped into the courtyard from the walls whereupon the accused persons managed to escape.
Many Police officers sustained injuries. Regarding Nikah she stated that her parents as well as parents of Mukhtar Shah and other members of the brotherhood participated in the marriage ceremony. She further stated in her cross-examination:--- "When I was at Feroz Wattoan Nazir and Jehangir on gun point obtained my thumb-impression on the blank Nikahnama's these are the same documents which were thumb-marked by me. These documents also bear my signatures. In my statement before the Magistrate I had deposed that the accused had obtained my signature as well as thumb-impression on blank Nikahnama. Inayat Shah is elder brother of my husband who was a married person, therefore, I was not ready to marry with him and the Nikahnama with Inayat Shah is result of fraud and forgery. When I joined the investigation of this case/F.I.R. Police shows me Nikahnama vide which my Nikah was solemnized with Inayat Shah but I negated its correctness. Regarding Nikahnama in respect of Inayat Shah I recorded my statement before the police that it was forged and fictitious. For cancellation of my Nikahnama with Inayat Shah I had not filed any suit before any Court. I was married with Syed Mukhtar Shah and other members of my brotherhood participated in my marriage ceremony.
Shabbir son of Nizam Din who is my cousin was my Nikah witness, the names of the other Nikah witnesses are not remembered as to me now. I was married with Mukhtar Shah in the month of November. Name of my Wakeel at the time of Nikah with Mukhtar Shah are not remembered to me now. My Nikah was performed with Mukhtar Shah against dower amount of Rs,50,000 out of which Rs,25,000 was paid to me the remaining was deferred dower. My Nikah with Mukhtar Shah was solemnized at Rawalpindi, however, it was registered but name of the Union Council is not known to me."
9. She categorically stated that she never recorded her statement before the police. She was recovered from the house of Shahadat at Feroz Wattoan and remained in the custody of accused for one month. During her medical check up she showed many injuries on her elbows and knees to the lady doctor. Her statement under section 164, Cr.P.C. Before the P.W.7 Malik Saeed Ahmed Awan, Magistrate 1st Class was substantially same.
10. P.W.4 Muhammad Aslam 62/H.C. Deposed that on 31-1-2002 Nazir and Jahangir, appellants, while in police lock-up were being interrogated by Ihsan Nawaz, A.S.-I. And on their pointation pistol .32 bore was recovered which was secured through recovery memo. Exh.P.D., and on the pointation of Jahangir gun .12 bore single barrel P.2, was recovered which was secured through recovery memo. As Exh.P.E. In cross-examination he stated that Jahangir and Nazir jointly disclosed the weapons and recoveries were effected from the house, jointly owned by Nazir and Jahangir. In cross-examination he stated that pistol was recovered on the pointation of appellant Nazir and gun was recovered on the pointation of Jehangir.
11. P.W.5 Lady Dr. Shazia Athar, W.M.O., T.H.Q. Hospital, Chiniot medically examined Mst. Manaza Majeed on 25-1-2002. She had furnished the details of her injuries and expressed her opinion on vaginal examination as under:---
(1) A semi healed I degree burn in an area of 5 x 2 c.m. On the back of right wrist joint.
(2) A semi healed abrasion of 1 x 1 c.m. On right knee joint.
(3) A semi healed abrasion of 1.5 x 1 c.m. Of left knee joint. Per vaginal examination Hymen was old ruptured, two fingers were easily introduced into vagina. Tenderness present on examination three high vaginal swa bs were taken for semen detection and three for grouping.
Qpinion ' In my opinion she was used to regular sexual intercourse, final report was postponed till the result from Chemical Examiner."
12. P.W.6 Dr. Mushtaq Bashir, M.O. T.H.Q. Hospital, Chiniot examined Muhammad Nazir and Jahangir on 30-1-2002. According to him both of them were found potent to perform sexual intercourse.
13. P.W.7 Malik Saeed Ahmad Awan, Civil Judge/Magistrate 1st Class, Shakar Garh deposed that on 25-1-2002 he was posted as Civil Judge/Magistrate 1st Class, Chiniot when Ehsan Nawaz, A.S.-I.
Produced Mst. Manaza Majeed before him for recording her statement under section 164, Cr.P.C. He accordingly recorded her statement. In cross-examination he stated that "it is correct that Mst.
Manaza Majeed is not present before me in this Court today. It is correct that at the relevant time the statement was not recorded in presence of the accused persons and she was not subjected to cross-examination by the accused or their counsel".
14. P.W.9 Asghar Ali, Sub-Inspector deposed that on 5-11-2002, investigation in the instant case was entrusted to him and on 6-11-2002 he obtained N.B.W. Of arrest of accused Munir, Bashir and Tassawar.
15. P.W.10 Zafar Iqbal, S.-I. Deposed that on 15-2-2003 investigation of the case was entrusted to him. He arrested accused Shabbir and Munir. P.W.11 Muhammad Baqar, 665-M.H.C. Moharrar handed over one sealed envelop for safe custody to Allah Rakha, 624-C on 8-2-2002 for their onward transmission to the office of the Chemical Examiner, Lahore intact. P.W.12 Allah Rakha 624- C handed over on 9-2-2002 one sealed phial for its onward transmission to the office of the Chemical Examiner, Lahore. In her statement under section 164, Cr.P.C., dated 25-1-2002 at Chiniot District Jhang Mst. Manaza Majeed stated that she is wife of the complainant. She was abducted and raped by the appellants and one Taswar at Dera where she was kept for two days. Afterwards she was taken to Feroz Wattoan village from where she was recovered.
16. Appellant Nazir recorded statement under section 342, Cr.P.C. In reply to question No,7 he stated:--- "It is incorrect. I performed the Nikah of Mst. Manaza Majeed with Inayat Shah on 20-12-2001 which was never challenged in any Family Court. Nazim and Naib Nazim of the said Union Council are politically against me and to victimize me they along with the connivance of the complainant party tampered with the record."
17. In his answer to question No,9 he said:- "No Nikah was performed between Mst. Manaza Majeed and Mukhtar Ali Shah, complainant. For the same reason original Nikahnama was not produced in the whole proceedings of the instant case."
18. While replying to question No,10 he gave the following answer:--- "The alleged Nikahnama is bogus which was prepared by complainant as well as P.Ws. With the connivance of the police."
19. In reply to the question as to why this case was filed against him, his answer was:--- "The P.Ws. Are related inter se who are inimical to me. In fact, I performed the Nikah of Mst. Manaza Majeed with Inayat Hussain Shah on 20-12-2000. Later on said Mst. Manaza Majeed developed illicit relations being lady of easy virtue with Mukhtar Hussain Shah, complainant. Due to grudge that I performed the above mentioned Nikah, complainant in connivance with Mst. Manaza Majeed and police got registered this F.I.R., falsely against me and my whole family. I produced the said Nikahnama during the course of investigation but Investigating Officer malafidely did not annex it with the challan, nor he investigated about these facts. Moreover, P.W. Muhammad Aslam is politically inimical with our family. In the year 2000 F.I.R. No,516, dated 9-9-2000 under sections 302/324/148/149/109, P.P.C. Was registered against me and other accused. I was acquitted of the charge by the Honourable Court. The instant case is sequence of that case, and Aslam, P.W., with the connivance of complainant got registered this case against me and my whole family. I am innocent. Complainant Mukhtar Hussain is the history-sheeter and habitual offender whose previous record has been annexed with the police file. The complainant and the P.Ws. Had exonerated two of the co-accused by getting money from them, in the same way they want to take money from me and my whole family and blackmail us, through Muhammad Aslam, P.W. Who participated in the whole proceedings against me. Nobody from the locality has appeared against me in investigation as well as in evidence. So the above mentioned case is false."
20. Appellant Jahangir in reply to question No,8 as to why this case was registered against him and why the P.Ws. Had deposed were against him replied:--- "In fact Muhammad Aslam, P.W. Is inimical to our family. In the year 2000 in the locality of U/C Harsa Sheikh case F.I.R. No,516 of 2000 under section 302, P.P.C. Was registered in which Aslam, P.W.
Instigated the complainant and falsely involved my brother Nazir son of Shera. Later on with the connivance of Mukhtar Shah he got registered the instant case against our whole family. In fact, Nazir performed Nikah of Mst. Manaza Majeed with Inayat Hussain in the year 2000 due to that grudge Mukhtar Hussain Shah became inimical towards Nazir accused and with the connivance of Aslam, P.W. He got registered this case falsely. Moreover, I endorsed the statement of Nazir, my co- accused."
21. Appellant. Nazir tendered copy of Nikahnama, Exh.D.B. Certified copy of F.I.R. No,516 dated 9-9- 2000 under sections 302/324, Qisas and Diyat Ordinance read with sections 109/148/149, P.P.C., Police Station Saddar Chiniot as Exh.D.C., copy of judgment in the said case F.I.R., dated 15-1-2004 as Exh.D.D., Nikahnama between Mst. Robina Kosar and Rajada, dated 16-7-1999 as Exh.D.G.
Nikahnama dated 16-7-1999, as Exh.D.H. Nikahnama, dated 29-11-1999 as Exh.D.J. None of the accused persons opted to get recorded their statements under section 340(2); Cr.P.C. Nor they produced any witness in their defence.
22. Learned counsel for the appellant Mian Muhammad Sikandar Hayat submitted that the impugned judgment is perverse, whimsical and bad in law as well as on facts. There was delay of 20 days between the day of occurrence and the day of reporting F.I.R. For which there is no plausible explanation. The day following the incident the complainant (P. W.1) is stated to have gone to the accused persons at their Dera for recovery of his wife but he remained silent thereafter for nineteen days till he lodged the complaint on 13-1-2000. This casts grave doubts to the prosecution case.
23. It was next contended by the learned counsel that as per the complainant's version (P.W.1) he had heard the hue and cry of his wife from a distance of 100 feet from Baithak whereas according to the alleged abductee Mst. Manaza Majeed (P.W.3) the ladies took her to a place about 2/3 miles from the house of Nazir to ease themselves. P.W.2 Muhammad Aslam deposed that the Wagon in which Mst. Manaza Majeed was abducted was 1000 feet from the Baithak of Nazir. There is such a glaring inconsistency in the statement of all the three eye-witnesses, hence the abduction of Mst.
Manaza Majeed is not proved.
24. It was further urged by the learned counsel for the appellants that Mst. Manaza Majeed had admitted that her statement was recorded by a Magistrate under section 164, Cr.P.C. Whereunder she had exonerated Taswa r of the charge of Zina-bil-Jabr. She had also exonerated one Bashir in her cross-examination. This goes on to show her instable mental condition. She herself had stated that she was not in her senses at the time of abduction/rape. Her testimony is full of contradictions and inconsistencies and thus, cannot be relied upon. The prosecution has failed to prove gang rape. In any case death sentence to the appellant is uncalled for on the facts and circumstances of the case.
25, Mr. Asjad Javed, learned D.P.-G. Conceded the admitted position that there was a delay of 19 days in lodging F.I.R. However, he submitted that it may not be overlooked that in every case of abduction/rape, family honour is involved. Instances are not wanting where efforts are made by the family members to recover the abductee of the family without recourse to police authorities.
Complainant Mukhtar Hussain Shah (P.W.3) deposed that his family's terms with the appellant's family go back to the day of their forefathers. There is also an allegation by the appellants that Manaza was married to the complainant's brother Inayat Shah (not produced) and appellant Nazir performed their Nikah. P.W.3 had also stated in his F.I.R. That he along with P.Ws. Approached the accused for return of his wife which was corroborated by Muhammad Aslam (P.W.2). The delay is thus explained and is understandable.
26. It is a non-issue whether Mst. Manaza is the wife of the complainant or of his brother Inayat Shah. None of them has been charged of Zina. Similarly even if the appellant Nazir performed the Nikah of Mst. Manaza with Inayat Shah, it will not absolve him of the charges against him.
27. However, the testimony of complainant P.W.3 that he had gone to the house of appellant Nazir has not been questioned. He was a witness to her abduction fully supported by the victim Mst.
Manaza and an independent witness namely P.W.2 of the vicinity who saw Mst. Manaza being dragged into the wagon by the appellants who were carrying arms. P.W.4. Muhammad Aslant recovered a pistol from appellant Nazir and a gun from appellant Jehangir. The abduction of Mst.
Manaza by the appellants is thus, established.
28. As regards Zina-bil-Jabr committed by the appellants, the record reveals that she was recovered by the police after about one month of her abduction. The appellant ran away when police raided the house. In her statement under section 164, Cr.P.C. As well as in her testimony she had unequivocally stated that she was subject to Zina-bil-Jabr by the appellants. She sustained abrasion on her knees and elbows at the time of abduction. She was taken to different places where the appellant turn by turn had committed Zina with her. On her resistance appellant Jehangir had hit her with a hot iron rod. The medical report of P.W.5 Lady Dr. Shazia Akhtar, W.M.O.
T.H.Q. Hospital Chiniot also stated that there were: "(1)A semi healed I degree burn in an area of 5 x 2 c.m. On the back of right wrist joint. (2) A semi healed abrasion of 1 x 1 c.m. On right knee joint. (3)
A semi healed abrasion of 1.5 x 1 c.m. Of left knee joint. The medical report fully supports the version of the victim as to the injuries inflicted on her person. There is no reason to disbelieve the victim whose testimony on the basis of her eye-witnesses account and also on the basis of circumstantial evidence remains unchallenged and irreversible.
29. As a result we dismiss the above appeal and uphold the conviction, The sentence of appellants under section 11 is also upheld but their death sentence under section 10(4) of the Ordinance is converted to imprisonment for life on account of mitigating circumstances.
30. Murder Reference No,11/L of 2004 is replied in negative.