Muhammad Sair Ali, J.--Through this Criminal Appeal by leave of this Court judgment dated 07.03.2002 passed by the Lahore High Court, Lahore has been challenged by the appellants Ijaz Ahmed and Tahir Hussain. A learned Division Bench of the High Court per the impugned judgment maintained the convictions and sentences of the appellants under Sections 16 and 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 awarded by Special Court No, 6, constituted under Terrorism Act 1997, Lahore through its judgment dated 26.04.2000 sentencing appellants to death under Section 10(4) and to seven years R.I. along with fine of Rs,20,000/- each or otherwise to undergo R.I. for six months each under Section 16 of the Ordinance, 1979. Murder Reference was accordingly answered in affirmative. The appellants were however, acquitted of the charges under Section 380 PPC. Their appeal was thus decided by the Lahore High Court, Lahore through the impugned judgment.
2. On written application (Ex.PA) of Syed Amjad Hussain as to the incident dated 16.10.1999, FIR No, 557 of 1999 (EX.PA/1) was registered on 22.10.1999 at 4:30 P.M., Police Station Shumail Chaowni, Lahore. The complainant reported that accused Ijaz while living with his neighbour Noor Muhammad, developed illicit relations with his wife Mst. Maqsoodan Bibi with the help of Mst.
Shehnaz Bibi wife of Ismael. And on 16.10.1999 when the complainant came back from duty around 4:00 P.M., he found his wife and two children missing from home. On inquiry, he was informed by his brother Muhammad Aslam son of Mubarak Ali and Imran Shah son of Manzoor Shah that they had seen his wife Mst. Maqsoodan Bibi and the children boarding a wagon at Rangers Bus Stop with Ijaz Ahmed, Shehnaz Bibi and Tariq (alias Tahir). The complainant thus reported that his wife had been abducted for commission of Zina by Ijaz Ahmed etc. and Rs,25,000/- and clothes had also been taken away from the house. FIR was registered at 4:30 P.M.. on 22.10.1999, Ijaz Ahmed accused was arrested on 25.10.1999. Maqsoodan Bibi and children were recovered on 25.10.1999 as per memo.
(Ex.P.B). Pistol (P.I) was recovered at the instance of Ijaz accused vide recovery memo. (Ex.P.C).
Rough site plan (Ex.P.E) was also prepared. Tahir Hussain and Shehnaz Bibi accused were arrested on 01..11.1999. A sum of Rs,5000/- was allegedly recovered from Tahir Hussain through recovery memo. of currency (Ex.P.D). On completion of investigation, challan was submitted against the accused persons.
3. On receipt of challan, the trial Court framed charges against the accused who denied the same and claimed trial. The prosecution produced nine witnesses i,e, the complainant Syed Amjad Hussain as PW. 1, Muhammad Afzal as PW.2 and Muhammad Aslam as PW.3. They repeated the story recorded in the FIR. Maqsoodan Bibi appeared as PW.5, narrating her version of her abduction by the accused persons and subjecting her to Zina-bil-Jabr. Dr. Rukhsana Tabassam PW.9, examined Maqsoodan Bibi on 25.10.1999. Chemical Examiners report also was placed on record as (Ex.P.K).
4. The accused were examined under Section 342 Cr.P.C. They denied correctness of the allegation levelled against them and proclaimed their innocence in the matter. They opted not to make statements on oath under Section 340(2) Cr. P.C. but produced five defence witnesses, namely Said Muhammad, Zahoor Hussain, Tasawar Hussain, Muhammad Yousaf and Haji Muhammad Ramzan (D.Ws. 1 to 5).
5. The learned trial Court through judgment dated 26.04.2000 found the charges against the accused persons to have been proved and thus convicted and sentenced the accused persons as under:-- "UNDER SECTION 16 OF OFFENCE OF ZINA (ENFORCEMENT OF HUDOOD) ORDINANCE NO.VII OF 1979): All the accused were sentenced to rigorous imprisonment for seven years each and to pay a fine of Rs,20,000/- each or in default whereof to further undergo rigorous imprisonment for six months each. UNDER SECTION 380 PPC: Ijaz Ahmad and Tahir Hussain were sentenced to rigorous imprisonment for seven years each with a fine of Rs,20,000/- each or in default whereof to further undergo rigorous imprisonment for six months each. UNDER SECTION 10(4) OF ORDINANCE NO. VII OF 1979: Ijaz Ahmad and Tahir Hussain were sentenced to death Sentences under Section 16 of Ordinance No, VII of 1979 and Section 380 PPC were ordered to run concurrently. Benefit of Section 382-B Cr.P.0 was extended to them."
6. All the three accused persons i,e, Ijaz Ahmed, Tahir Hussain and Shehnaz Bibi filed Criminal Appeal No, 505 of 2000 against the trial Court's judgment. Murder Reference No, 447-T of 2000 sought confirmation of the sentence of death awarded to Ijaz Ahmed and Tahir Hussain convicts.
7. The learned Division Bench of the Lahore High Court, held prosecution to have failed to establish charge against the appellants under Section 380 PPC and thus set-aside the conviction on this count and acquitted the accused persons of the said charge. However, convictions and sentences of appellants under sections 16 and 10(4) of the Ordinance were maintained. Dismissing the appeal, death sentences awarded to Ijaz Ahmed and Tahir Hussain were confirmed. Hence the present criminal appeal.
8. Learned counsel for the appellants repeated the contentions raised by them before this Court at leave stage. The same were taken note of in the Leave Granting Order dated 07.11.2005 which read as under- "5. We have heard Ch. Muhammad Akram, learned counsel for the petitioners at length and have gone through the record and proceedings of the case in minute particulars.
6. Learned counsel for the petitioners mainly contended that initially case was registered under Sections 11 & 16 of the Ordinance and Section 380 PPC wherein complainant has categorically stated that Mst. Maqsoodan was enticed away by petitioner Ijaz for the purpose of committing Zina whereas at trial he has improved his statement. Mst. Maqsooda abductee has put forth quite different story while stating that amount of Rs,25000/- was robbed from her at the pistol point by the petitioners then her children were taken away and she was asked to come at bus stand otherwise their children will be killed. With regards to the recovery, she has stated that she and her children were recovered from Railway Station, Lahore, from the possession of Ijaz hereafter she was sent to Darul Aman by the Magistrate and was produced after eight days and then her statement under Section 164 was recorded. Thereafter, she was handed over to complainant her husband.
Learned counsel further contended that abductee in her statement admitted that she neither raised hue and cry nor narrated the incident to anyone during her being taken away in bus as well as during her stay in a hotel at Vehari. Leave to appeal is granted, inter-alia, to consider the above contentions for save administration of criminal justice."
9. Learned counsel adding to the submissions stated that at maximum it was a case of Section 10(2) and Maqsoodan Bibi, as is evident from her own statement and the remaining evidence, had eloped with the accused persons. Further contended that there is no evidence on record against the appellant Tahir Hussain, wherefore, the High Court not only misread the evidence but non-read the same. In the contrary arguments, Mian Asif Mumtaz, Dy. Prosecutor General, Punjab supported the impugned judgment.
10. We have considered the submissions of the learned counsel for the parties, the evidence and the record. Maqsoodan Bibi's statement as PW.5 provides a reasonable clue to the riddle. In examination-in-chief, she admitted that Mst. Shehnaz Bibi, was on visiting terms and tried to persuade Maqsoodan Bibi to marry Ijaz Ahmed after getting divorce from her husband i,e, the complainant Syed Amjad Hussain, PW.1. And that on the day of occurrence 16.10.1999 Shehnaz Bibi, Ijaz Ahmed and Tahir Hussain came to her house and by putting pistol against the head of her minor son forcibly took away Rs,25,000/- as well as her children directing her to come to the wagon stand or face death of her children. And that Mst. Shehnaz Bibi accused took her to the wagon, stand where they all boarded the wagon and went to Vehari. And that they checked into of hotel room in Vehari where appellants committed Zina-bil-Jabr with her for 08/09 days. They then brought her and the children to Lahore Railway Station from where she was recovered by Police and her husband, and accused Ijaz Ahmed was arrested while Tahir Hussain slipped away. And that on her recovery she was medically examined and produced before the Magistrate for her statement under Section 164 Cr.P.C. But being mentally disturbed, her statement could not be recorded whereupon she was sent to Darul Aman. And that after eight days, she was produced from Darul Aman before the Magistrate where her statement under Section 164 Cr.P.0 was recorded.
11. Maqsoodan Bibi is the star witness of the case. She left or was made to have her house along with her two minor children Ahmed Ali aged 05 years and Maryam Bibi 02 years on 16.10.1999. She remained in the company of the accused till 25.10.1999. She was standing at a wagon stand near Railway, Station along with her children and the accused, when she was allegedly recovered by the I.O. who was accompanied by husband of Maqsoodan Bibi and Muhammad Afzal brother of Amjad Hussain Shah. At the time of recovery of Maqsoodan Bibi, Ijaz Ahmed appellant was with her and was arrested. There is no evidence on record that Maqsoodan Bibi, on seeing her husband rushed towards him or called for help. On the contrary, she was standing, without raising any protest at the bus stand. She admitted in her statement that from her house, she was went with Shehnaz Bibi to the wagon stand through main bazaar of Dogaij Town; a thickly populated area. In cross- examination she also admitted that she did not raise alarm during the journey from her residence to the Rangers Bus stop although the Rangers Police was present near the said Bus stop or while going to Vehari in the wagon. She further admitted that she and the accused reached Railway Station at about 11/12 noon and thereafter was taken to Bus stop on a Riksha and that she reached at the bus. She categorically admitted that she did not raise alarm at any of the places. As per her own statement, it is evident that she accompanied the accused, to many public places but never ever raised alarm at any time, place or occasion. The only explanation offered by her is that Ijaz Ahmed accused was armed with pistol therefore, she was too terrified to raise any alarm. She did not state anywhere that from 16th to 25th of October, 1999, Ijaz Ahmed appellant did not leave her and children ever alone. Intriguingly she was recovered while in the company of Ijaz Ahmed from a public place. Simultaneous with her recovery, Ijaz Ahmed arrested but did not carry any pistol on him nor was any weapon recovered from his possession. According to prosecution the pistol had been hidden in an open place and was got recovered by Ijaz Ahmed on 31.10.1999 i,e, six days after his arrest. Arrest of Ijaz Ahmed without the pistol, from the Railway Station in the company of Maqsoodan Bibi, belies her story of remaining quiet due to fear.
12. The matter was reported to Police through a written application dated 16.10.1999 (Ex.P.A) by the husband of the Maqsoodan Bibi on 22.10.1999, six clays after Maqsoodan Bibi was found missing from the house along with two minor children. The delay in reporting the matter to the police has no plausible explanation. The contents of Ex.P.A reveal that Ijaz Ahmed had developed illicit relations with Maqsoodan Bibi and her husband knew of it and complained to Noor Muhammad; the host of Ijaz Ahmed. Maqsoodan Bibi thus evidently left her house alongwith two minor children at her own will and according to the complainant also took away cash worth Rs,25,000/- and clothes. Sequence of these events completely discredit the story of Maqsoodan Bibi that she was forced to accompany the accused and who compelled her to live with them and to submit to their design and acts.
13. According to Ex.P.A, the complainant was informed on 16.10.1999 by his brother Muhammad Aslam PW.3 and his brother-in-law Imran Shah that they had seen the Maqsoodan Bibi and children and accused boarding the bus/wagon yet they let her and the child go away quietly and did not immediately report the matter to the police or the complainant. This is highly unlikely conduct by closest or blood relatives. It is thus evident that complainant and all the relatives knew his wife had eloped with the accused.
14. Dr. Rukhsana Tabassm , P.W.9 stated that she examined Maqsoodan Bibi on 25.10.1999 at 4:00 P.M. She did not find any mark of violence or injury on the body of Maqsoodan Bibi nor did she find any mark of violence or injury on her private areas. She further stated that according to report of Chemical Examiner, the swa bs were found to be stained with semen. The medical evidence is too general in nature. It only reveals about sexual inter-course of a married woman. It does not show as to the nature of sex she had undergone or been subjected to either forcibly or otherwise.
15. According to I.O. Ijaz Ahmed was arrested on 25.10.1999. While in custody on 31.10.1999 he led to the recovery of pistol P.I which was taken into possession vide recovery memo. Ex.P.C. The evidence of recovery of pistol does not inspire confidence. No independent witnesses was associated during the recovery proceedings. The recovery was from an open place which was accessible to all. Ijaz Ahmed statedly remained through out with Maqsoodan Bibi so when did he get a chance to hide his pistol. Furthermore recovery of Rs,5000/- from the possession of Tahir Hussain accused had not been believed by the High Court. Suffice to say that the notes were not marked and recovery could not be used against the accused.
16.We have noticed that all the witnesses except for police officials and the Lady Dr. Rukhsana Tabassam were closely related to the complainant. No independent witness was produced before the learned Trial Court from any of the places where Maqsoodan Bibi had 'allegedly been taken to or made to stay by the accused persons.
17. In the above noted circumstances, we are of the considered opinion that it was a case of elopement and Maqsoodan Bibi had left with Ijaz Ahmed appellant on her own. Hence, we alter the conviction of Ijaz Ahmed appellant from offence under Section 10(4) Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 to offence under Section 10(2) ibid. His sentence is reduced to the period already undergone by him in the Jail. He is acquitted of the charge for the offence under Section 16 of Offence of Zina (Enforcement of Hudood) Ordinance "No, VII of 1979. He shall be released from Jail forthwith if not required in any other case. The judgments passed by the learned Courts below are accordingly modified.
18. The case of Tahir Hussain appellant stands on different footings. According to FIR Maqsoodan Bibi had developed illicit relationship with Ijaz Ahmed only. There is no independent incriminating evidence available against Tahir appellant. This appeal is allowed to the extent of Tahir Hussain.
The judgment passed by the learned Courts below to his extent are set-aside. He is acquitted of all the charges and shall be released forthwith if not required in any other case. With above noted modifications, this appeal is partly allowed.
Through this Criminal Appeal by leave of this Court judgment dated 07.03.2002 passed by the Lahore High Court, Lahore has been challenged by the appellants Ijaz Ahmed and Tahir Hussain. A learned Division Bench of the High Court per the impugned judgment maintained the convictions and sentences of the appellants under Sections 16 and 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 awarded by Special Court No, 6, constituted under Terrorism Act 1997, Lahore through its judgment dated 26.04.2000 sentencing appellants to death under Section 10(4) and to seven years R.I. along with fine of Rs,20,000/- each or otherwise to undergo R.I. for six months each under Section 16 of the Ordinance, 1979. Murder Reference was accordingly answered in affirmative. The appellants were however, acquitted of the charges under Section 380 PPC. Their appeal was thus decided by the Lahore High Court, Lahore through the impugned judgment.
2. On written application (Ex.PA) of Syed Amjad Hussain as to the incident dated 16.10.1999, FIR No, 557 of 1999 (EX.PA/1) was registered on 22.10.1999 at 4:30 P.M., Police Station Shumail Chaowni, Lahore. The complainant reported that accused Ijaz while living with his neighbour Noor Muhammad, developed illicit relations with his wife Mst. Maqsoodan Bibi with the help of Mst.
Shehnaz Bibi wife of Ismael. And on 16.10.1999 when the complainant came back from duty around 4:00 P.M., he found his wife and two children missing from home. On inquiry, he was informed by his brother Muhammad Aslam son of Mubarak Ali and Imran Shah son of Manzoor Shah that they had seen his wife Mst. Maqsoodan Bibi and the children boarding a wagon at Rangers Bus Stop with Ijaz Ahmed, Shehnaz Bibi and Tariq (alias Tahir). The complainant thus reported that his wife had been abducted for commission of Zina by Ijaz Ahmed etc. and Rs,25,000/- and clothes had also been taken away from the house. FIR was registered at 4:30 P.M.. on 22.10.1999, Ijaz Ahmed accused was arrested on 25.10.1999. Maqsoodan Bibi and children were recovered on 25.10.1999 as per memo.
(Ex.P.B). Pistol (P.I) was recovered at the instance of Ijaz accused vide recovery memo. (Ex.P.C).
Rough site plan (Ex.P.E) was also prepared. Tahir Hussain and Shehnaz Bibi accused were arrested on 01..11.1999. A sum of Rs,5000/- was allegedly recovered from Tahir Hussain through recovery memo. of currency (Ex.P.D). On completion of investigation, challan was submitted against the accused persons.
3. On receipt of challan, the trial Court framed charges against the accused who denied the same and claimed trial. The prosecution produced nine witnesses i,e, the complainant Syed Amjad Hussain as PW. 1, Muhammad Afzal as PW.2 and Muhammad Aslam as PW.3. They repeated the story recorded in the FIR. Maqsoodan Bibi appeared as PW.5, narrating her version of her abduction by the accused persons and subjecting her to Zina-bil-Jabr. Dr. Rukhsana Tabassam PW.9, examined Maqsoodan Bibi on 25.10.1999. Chemical Examiners report also was placed on record as (Ex.P.K).
4. The accused were examined under Section 342 Cr.P.C. They denied correctness of the allegation levelled against them and proclaimed their innocence in the matter. They opted not to make statements on oath under Section 340(2) Cr. P.C. but produced five defence witnesses, namely Said Muhammad, Zahoor Hussain, Tasawar Hussain, Muhammad Yousaf and Haji Muhammad Ramzan (D.Ws. 1 to 5).
5. The learned trial Court through judgment dated 26.04.2000 found the charges against the accused persons to have been proved and thus convicted and sentenced the accused persons as under:-- "UNDER SECTION 16 OF OFFENCE OF ZINA (ENFORCEMENT OF HUDOOD) ORDINANCE NO.VII OF 1979): All the accused were sentenced to rigorous imprisonment for seven years each and to pay a fine of Rs,20,000/- each or in default whereof to further undergo rigorous imprisonment for six months each. UNDER SECTION 380 PPC: Ijaz Ahmad and Tahir Hussain were sentenced to rigorous imprisonment for seven years each with a fine of Rs,20,000/- each or in default whereof to further undergo rigorous imprisonment for six months each. UNDER SECTION 10(4) OF ORDINANCE NO. VII OF 1979: Ijaz Ahmad and Tahir Hussain were sentenced to death Sentences under Section 16 of Ordinance No, VII of 1979 and Section 380 PPC were ordered to run concurrently. Benefit of Section 382-B Cr.P.0 was extended to them."
6. All the three accused persons i,e, Ijaz Ahmed, Tahir Hussain and Shehnaz Bibi filed Criminal Appeal No, 505 of 2000 against the trial Court's judgment. Murder Reference No, 447-T of 2000 sought confirmation of the sentence of death awarded to Ijaz Ahmed and Tahir Hussain convicts.
7. The learned Division Bench of the Lahore High Court, held prosecution to have failed to establish charge against the appellants under Section 380 PPC and thus set-aside the conviction on this count and acquitted the accused persons of the said charge. However, convictions and sentences of appellants under sections 16 and 10(4) of the Ordinance were maintained. Dismissing the appeal, death sentences awarded to Ijaz Ahmed and Tahir Hussain were confirmed. Hence the present criminal appeal.
8. Learned counsel for the appellants repeated the contentions raised by them before this Court at leave stage. The same were taken note of in the Leave Granting Order dated 07.11.2005 which read as under- "5. We have heard Ch. Muhammad Akram, learned counsel for the petitioners at length and have gone through the record and proceedings of the case in minute particulars.
6. Learned counsel for the petitioners mainly contended that initially case was registered under Sections 11 & 16 of the Ordinance and Section 380 PPC wherein complainant has categorically stated that Mst. Maqsoodan was enticed away by petitioner Ijaz for the purpose of committing Zina whereas at trial he has improved his statement. Mst. Maqsooda abductee has put forth quite different story while stating that amount of Rs,25000/- was robbed from her at the pistol point by the petitioners then her children were taken away and she was asked to come at bus stand otherwise their children will be killed. With regards to the recovery, she has stated that she and her children were recovered from Railway Station, Lahore, from the possession of Ijaz hereafter she was sent to Darul Aman by the Magistrate and was produced after eight days and then her statement under Section 164 was recorded. Thereafter, she was handed over to complainant her husband.
Learned counsel further contended that abductee in her statement admitted that she neither raised hue and cry nor narrated the incident to anyone during her being taken away in bus as well as during her stay in a hotel at Vehari.
Leave to appeal is granted, inter-alia, to consider the above contentions for save administration of criminal justice."
9. Learned counsel adding to the submissions stated that at maximum it was a case of Section 10(2) and Maqsoodan Bibi, as is evident from her own statement and the remaining evidence, had eloped with the accused persons. Further contended that there is no evidence on record against the appellant Tahir Hussain, wherefor, the High Court not only misread the evidence but non-read the same. In the contrary arguments, Mian Asif Mumtaz, Dy. Prosecutor General, Punjab supported the impugned judgment.
10. We have considered the submissions of the learned counsel for the parties, the evidence and the record. Maqsoodan Bibi's statement as PW.5 provides a reasonable clue to the riddle. In examination-in-chief, she admitted that Mst. Shehnaz Bibi, was on visiting terms and tried to persuade Maqsoodan Bibi to marry Ijaz Ahmed after getting divorce from her husband i,e, the complainant Syed Amjad Hussain, PW.1. And that on the day of occurrence 16.10.1999 Shehnaz Bibi, Ijaz Ahmed and Tahir Hussain came to her house and by putting pistol against the head of her minor son forcibly took away Rs,25,000/- as well as her children directing her to come to the wagon stand or face death of her children. And that Mst. Shehnaz Bibi accused took her to the wagon, stand where they all boarded the wagon and went to Vehari. And that they checked into of hotel room in Vehari where appellants committed Zina-bil-Jabr with her for 08/09 days. They then brought her and the children to Lahore Railway Station from where she was recovered by Police and her husband, and accused Ijaz Ahmed was arrested while Tahir Hussain slipped away. And that on her recovery she was medically examined and produced before the Magistrate for her statement under Section 164 Cr.P.C. But being mentally disturbed, her statement could not be recorded whereupon she was sent to Darul Aman. And that after eight days, she was produced from Darul Aman before the Magistrate where her statement under Section 164 Cr.P.0 was recorded.
11. Maqsoodan Bibi is the star witness of the case. She left or was made to have her house alongwith her two minor children Ahmed Ali aged 05 years and Maryam Bibi 02 years on 16.10.1999. She remained in the company of the accused till 25.10.1999. She was standing at a wagon stand near Railway, Station alongwith her children and the accused, when she was allegedly recovered by the I.O. who was accompanied by husband of Maqsoodan Bibi and Muhammad Afzal brother of Amjad Hussain Shah. At the time of recovery of Maqsoodan Bibi, Ijaz Ahmed appellant was with her and was arrested. There is no evidence on record that Maqsoodan Bibi, on seeing her husband rushed towards him or called for help. On the contrary, she was standing, without raising any protest at the bus stand. She admitted in her statement that from her house, she was went with Shehnaz Bibi to the wagon stand through main bazaar of Dogaij Town; a thickly populated area. In cross- examination she also admitted that she did not raise alarm during the journey from her residence to the Rangers Bus stop although the Rangers Police was present near the said Bus stop or while going to Vehari in the wagon. She further admitted that she and the accused reached Railway Station at about 11/12 noon and thereafter was taken to Bus stop on a Riksha and that she reached at the bus. She categorically admitted that she did not raise alarm at any of the places. As per her own statement, it is evident that she accompanied the accused, to many public places but never ever raised alarm at any time, place or occasion. The only explanation offered by her is that Ijaz Ahmed accused was armed with pistol therefore, she was too terrified to raise any alarm. She did not state anywhere that from 16th to 25th of October, 1999, Ijaz Ahmed appellant did not leave her and children ever alone. Intriguingly she was recovered while in the company of Ijaz Ahmed from a public place. Simultaneous with her recovery, Ijaz Ahmed arrested but did not carry any pistol on him nor was any weapon recovered from his possession. According to prosecution the pistol had been hidden in an open place and was got recovered by Ijaz Ahmed on 31.10.1999 i,e, six days after his arrest. Arrest of Ijaz Ahmed without the pistol, from the Railway Station in the company of Maqsoodan Bibi, belies her story of remaining quiet due to fear.
12. The matter was reported to Police through a written application dated 16.10.1999 (Ex.P.A) by the husband of the Maqsoodan Bibi on 22.10.1999, six clays after Maqsoodan Bibi was found missing from the house alongwith two minor children. The delay in reporting the matter to the police has no plausible explanation. The contents of Ex.P.A reveal that Ijaz Ahmed had developed illicit relations with Maqsoodan Bibi and her husband knew of it and complained to Noor Muhammad; the host of Ijaz Ahmed. Maqsoodan Bibi thus evidently left her house alongwith two minor children at her own will and according to the complainant also took away cash worth Rs,25,000/- and clothes.
Sequence of these events completely discredit the story of Maqsoodan Bibi that she was forced to accompany the accused and who compelled her to live with them and to submit to their design and acts.
13. According to Ex.P.A, the complainant was informed on 16.10.1999 by his brother Muhammad Aslam PW.3 and his brother-in-law Imran Shah that they had seen the Maqsoodan Bibi and children and accused boarding the bus/wagon yet they let her and the child go away quietly and did not immediately report the matter to the police or the complainant. This is highly unlikely conduct by closest or blood relatives. It is thus evident that complainant and all the relatives knew his wife had eloped with the accused.
14. Dr. Rukhsana Tabassm , P.W.9 stated that she examined Maqsoodan Bibi on 25.10.1999 at 4:00 P.M. She did not find any mark of violence or injury on the body of Maqsoodan Bibi nor did she find any mark of violence or injury on her private areas. She further stated that according to report of Chemical Examiner, the swa bs were found to be stained with semen. The medical evidence is too general in nature. It only reveals about sexual inter-course of a married woman. It does not show as to the nature of sex she had undergone or been subjected to either forcibly or otherwise.
15. According to I.O. Ijaz Ahmed was arrested on 25.10.1999. While in custody on 31.10.1999 he led to the recovery of pistol P.I which was taken into possession vide recovery memo. Ex.P.C. The evidence of recovery of pistol does not inspire confidence. No independent witnesses was associated during the recovery proceedings. The recovery was from an open place which was accessible to all. Ijaz Ahmed statedly remained through out with Maqsoodan Bibi so when did he get a chance to hide his pistol. Furthermore recovery of Rs,5000/- from the possession of Tahir Hussain accused had not been believed by the High Court. Suffice to say that the notes were not marked and recovery could not be used against the accused.
16. We have noticed that all the witnesses except for police officials and the Lady Dr. Rukhsana Tabassam were closely related to the complainant. No independent witness was produced before the learned Trial Court from any of the places where Maqsoodan Bibi had 'allegedly been taken to or made to stay by the accused persons.
17. In the above noted circumstances, we are of the considered opinion that it was a case of elopement and Maqsoodan Bibi had left with Ijaz Ahmed appellant on her own. Hence, we alter the conviction of Ijaz Ahmed appellant from offence under Section 10(4) Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 to offence under Section 10(2) ibid. His sentence is reduced to the period already undergone by him in the Jail. He is acquitted of the charge for the offence under Section 16 of Offence of Zina (Enforcement of Hudood) Ordinance "No, VII of 1979. He shall be released from Jail forthwith if not required in any other case. The judgments passed by the learned Courts below are accordingly modified.
18. The case of Tahir Hussain appellant stands on different footings. According to FIR Maqsoodan Bibi had developed illicit relationship with Ijaz Ahmed only. There is no independent incriminating evidence available against Tahir appellant. This appeal is allowed to the extent of Tahir Hussain.
The judgment passed by the learned Courts below to his extent are set-aside. He is acquitted of all the charges and shall be released forthwith if not required in any other case. With above noted modifications, this appeal is partly allowed.