' MISS AALIA NEELUM, J.--- Muhammad Younas son of Ghullam Muhammad, Caste, Jatt, resident of Mojianwala, Tehsil and District, Mandi Baha-ud-Din was involved in case FIR No,306, dated 10-9- 2009, offence under Sections 365-B and 376, P.P.C., registered at Police Station, Saddar Lalamusa and was tried by Mr. Malik Ali Zulqarnain Awan, Additional Sessions Judge, Kharian. The learned trial court seized with the matter in terms of judgment dated 17-1-2013 while convicted the appellant under section 365-B, P.P.C., and sentenced him to imprisonment for life. The appellant was also convicted under Section 376, P.P.C., and sentenced to ten years R.I. With fine of Rs,50,000 and in case of default thereof, further undergo six months S.I. And both the sentences awarded to the accused shall have to run concurrently. The benefit of Section 382-B, Cr.P.C. Was also extended in favour of appellant.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant assailed his conviction through filing Crl. Appeal No,144 of 2013.
3. Prosecution story as contained in the FIR (Ex.PA/1) lodged on the complaint (Ex.PA) of Mst.Khalida .Parveen wife of Muhammad Rashid (PW-2) is that Muhammad Younas (appellant) was on visiting the house of complainant and he had developed illicit relations with Mst. Saniya Arif. On 4-9-2009, at about 2:00 p.m. Muhammad Younas along with Falak Sher, Yousaf, Haleema Bibi and Kaniz Bibi had enticed away the daughter of the complainant namely Mst. Saniya Arif, aged about 12/13 years on a Hiace Toyota with the intention to commit Zina. The alleged occurrence was witnessed by Nazar Hussain and Muhammad Sarwar. Hence, this case.
4. On the basis of complaint (Ex.PA) submitted by the complainant, formal FIR (Ex.PA/1) was scribed by Khizar Hayat, S.I., (PW-6) and thereafter he along with other police officials visited the alleged place of occurrence and prepared the rough site plan (Ex.PD). He also recorded the statement of abductee-Mst. Saniya Arif under section 161 of Cr.P.C. On 16-10-2009 alleged abductee-victim was got medically examined through Abid Saleem-1174/C and thereafter the Investigating Officer took into possession the medico-legal certificate of victim (Ex.PB) along with two sealed phials, Shalwar and Qameez of the victim by preparing the recovery memo (Ex.PF). He arrested the accused- appellant on 9-11-2009 and recovered an unlicensed pistol .30-bore from the accused-appellant and thereafter got medically examined the accused on 10-11-2009 and obtained the medico-legal certificate (Ex.PC).
5. Having found the accused guilty, accordingly report in terms of Section 173, Cr.P.C. Was prepared and same was sent to the court of competent jurisdiction. On 16-1-2010, the learned trial court, formally charge sheeted the appellant to which he pleaded note guilty and claimed trial, whereas remaining co-accused were not summoned by the learned trial court, as their names were placed in column No,2 of challan by the Investigating Officer. Prosecution, in order to prove its case produced as many as nine (09) prosecution witnesses.
6. Ocular account of first part of occurrence in this case came out from the statement of Khalida Parveen (PW-2)/ complainant and alleged abductee-victim namely Mst. Saniya Arif (PW-1) narrated the entire incident whereas Nazar Hussain (PW-3) and Muhammad Sarwar (given up) were the eye-witnesses of alleged occurrence. Dr. Adeeba Farhat, Women Medical Officer Tehsil Headqurter Hospital, Kharian conducted the medico-legal examination of victim-Mst. Saniya Arif (was untraceable) and Amjad Hussain Dispenser, (P.W-4), T. H.Q Hospital,: Kharian produced the M.L.C., of victim as secondary evidence whereas Dr.Naeem Akhter, (PW-5) Medical Officer, R.H.C.
Lalamusa got medically examined the accused-appellant Muhammad Younas and issued M.L.C.
(Ex.PC). The statements of remaining prosecution witnesses are formal in nature.
8. On 3-1-2011, learned Deputy District Public Prosecutor gave up Muhammad Sarwar (PW) being unnecessary. The learned Deputy District Public Prosecutor closed the prosecution evidence after tendering report of Chemical Examiner (Ex.PH) on 24-4-2012.
9. The appellant was also examined in terms of Section 342, Cr.P.C., wherein he opted not to appear as his own witness in terms of Section 340(2) of Cr.P.C., in disproof of the allegations levelled against him in the prosecution version. While replying to the question that why this case against him and why the PWs deposed against him, the appellant made the following deposition:- "In fact Saniya Arif had developed liking for me and she herself persuaded me to get married with her and accordingly out of love I contracted marriage with Saniya Arif on 25-8-2009 at Mandi BahaUd-Din. She had also sworn an affidavit to this effect. And afterwards she had gone' to the house of her parents with her own free will to see them but on pressurizing by her parents and under their coercion she had turned against me. The PWs are related inter se therefore, they had deposed falsely against me."
' The appellant in defence produced original Nikah Nama dated 25-8-2009 registered in Union Council No,4, Mandi Baha-ud-Din as (Ex.DA), original affidavit of Mst. Saniya Arif (Ex.DB), attested copy of plaint of suit for dissolution of marriage on the ground of Khula (Ex.DC) and attested copy of judgment and decree dated 3-4-2010 of Family Court (Ex.DD) and closed his evidence.
10. Learned trial court- after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms.
11. Learned counsel for the appellant has contended the learned trial court had failed to appreciate the evidence in its true perspective; that appellant is falsely involved in the instant case as Mst.
Saniya Arif was his legally wedded wife, which is apparent from the documents available on record.
Lastly, he prayed for acquittal of the appellant.
12. On the other hand, learned counsel for the complainant as well as learned Additional Prosecutor General have opposed the contentions raised by learned counsel for the appellant and submitted that solitary statement of the victim namely Mst. Saniya Arif wherein she stated that the appellant had committed sexual intercourse with her is sufficient to connect the accused-appellant with the commission of offence, alleged against him. They prayed for dismissal of the appeal.
13. Arguments advanced pro and contra have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the parties.
14. The alleged occurrence took place on 4-9-2009 at about 2:00 p.m. According to the complainant, the appellant along with co-accused persons enticed away daughter of the complainant (PW-2) namely Mst. Saniya Arif aged about 12/13 years with the intention to subject her to illicit relation. The victim was medically examined and as per M.L.0 (Ex.PB) her sexual characteristics (breasts pubic hairs) well developed. As per medical report, she was quite a grown up girl. The complainant (PW-2) deposed during examination-inchief that abductee was of 12 years whereas she was confronted with (Ex.PA) wherein she specifically mentioned that abductee was of 12/13 years. On the other hand, as per contents of affidavit (Ex.DB) and Nikah Nama (Ex.DA) the age of abductee was mentioned as 18 years old. The victim is more or less of a grown up girl.
The affidavit was put to the abductee and she IA deposed that:-- "It is incorrect that I got prepared my affidavit on white paper. Volunteered my thumb impression was obtained on blank papers. I cannot read single word of upper portion of affidavit. My name is written on the affidavit. Affidavit bear my thumb impression. Volunteered it was obtained on blank paper. I can read the contents of the affidavit. However, the affidavit has been written in urdu present- before me at this stage."
15. The affidavit was not written on "papers" rather it was written on "stamp papers" dated 25-8- 2009 prior to alleged incident. The snap of abductee is also affixed at the back of stamp paper along with thumb impression of abductee. As per the contents of said affidavit, she mentioned her age as 17/18 years old. The Medico Legal Report (Ex.PB) shows that she is quite a grown up girl.
Although no documentary evidence has been placed on record to prove the date of birth of abductee-victim. Before the alleged incident, she executed an affidavit by mentioning her age as 17/18 years.
16. As per prosecution version, neither complainant (PW-2)/Khalida Parveen nor other witnesses were the eye-witness of the alleged abduction. Khalida Parveen (PW-2) had dishonestly improved her statement by stating that prosecution witnesses namely Nazar Hussain (PW-3) and Ghulam Sarwar (given up) had informed her about the abduction which was confronted with (Exh.PA), wherein it was mentioned that PWs had seen the accused along with Mst. Saniya Arif while going towards Kharian. Nazar Hussain, PW-3 deposed that he saw Mst.Saniya Arif along with accused while proceeding towards Kharian. This witness did not depose that he saw accused had abducted the victim-abductee whereas Nazar Hussain (PW-3) deposed that the complainant was in knowledge of abduction of the victim and in this regard he deposed:-- `It was also in knowledge of the parents of Mst.Saniya Arif before giving any information to them".
17. The abductee-victim Mst. Saniya Arif (PW-1) deposed that when she was returning back to her house on the way, the appellant along with his brother namely Muhammad Yousaf, Falak Sher, Haleema Bibi (mother) and his wife Kaniz Bibi met her and asked her to go to the house of abductee's maternal grand mother in Village Mojianwala but the appellant instead of taking her to the house of her maternal grand mother went to Faisalabad in a car. The appellant kept her (abductee) in the house of his relative in Faisalabad for ten days, where appellant committed Zinabil-Jabr with abductee. Thereafter the appellant along with Muhammad Abbas and Fouzia Bibi brought the abductee to Mandi Baha-ud-Din from where, the alleged abductee rescued herself while boarding on a bus and came to the village Guliana in the house of her father. The abductee was not recovered from the custody of the appellant. Apart from, the distance in between the place of occurrence and the house of victim, another important factor is that Mst. Saniya Arif throughout the process of her abduction neither offered any resistance nor she raised alarm qua her abduction. She deposed that she made hue and cry when the accused asked her to sit in car whereas she did not depose that she was under constant threats on behalf of the appellant. The abductee through out the process moved at different places with the appellant and did not try to raise hue and cry to attract the others. Even she did not depose that she was forcibly detained by the appellant although she deposed that when accused were busy in shopping with her she managed to escape from Mandi Baha-udDin. It is necessary to mention here that abductee had not stated a single word that she was restrained under threat to raise hue and cry. The abductee deposed that she remained in her village since her birth and never visited any other village out of her village whereas she easily travelled on bus from Mandi Baha-ud-Din to her father's village i,e, Guliana. The conduct of Mst. Saniya Arif, therefore, renders her version as full of doubt.
18. The matter was reported to police through a written application dated 10-9-2009 (after six days of alleged occurrence) by the mother of abductee-Mst. Saniya Arif. The delay in lodging the matter is not explained plausibly. The abductee deposed that she remained with appellant for ten days and when she returned back to the house of his father, case was registered. This fact was not mentioned in the FIR or written complaint (Ex.PA/1 & Ex.PA). In view of the statement of abductee date of alleged occurrence also becomes doubtful. Mst. Saniya Arif (PW-1) during cross- examination deposed that "it was about 8:00 p.m. When we reached Faisalabad without any stop in the way, and remained there for about ten days". The contents of (Ex.PA) reveals that appellant had developed illicit relations with Mst. Saniya Arif and mother of .Abductee was aware about it, whereas Khalida Parveen-mother of abductee had improved her statement by stating that she did not mention in (Ex.PA) that Mst. Saniya Arif prior to her abduction had illicit relations and she also denied that she ever met with the appellant prior to lodging of the FIR which were confronted with (Exh.PA). Thus Mst. Saniya Arif evidently left her house as per her own wish and before leaving her mother's house, she had contracted marriage with appellant on 25-8-2009. She also deposed that she had filed suit for dissolution of marriage on the basis of khula. In this regard she deposed as under:- "I filed a suit for dissolution of marriage in District M.B.Din. Factum of Zina has not been mentioned in my suit for dissolution of marriage. Suit for dissolution of marriage was decreed in my favour vide order dated 3-4-2010."
19. As per the contents of suit for dissolution of marriage (Ex.DC), she stated that she developed extreme hatred for the defendant (appellant) and it was not possible for her to live with the defendant (appellant) within the limits prescribed by the Almighty Allah. The said suit was decreed on 3-4-2010. The abductee was directdd to return dower amount i,e, (Rs,1000) to the defendant (appellant). Sequence of these averments had completely discredited the story of abduction and rape that Mst.Saniya Arif was forcibly abducted.
20. The Investigating Officer (PW-6) deposed that during his investigation, he concluded that Mst.
Saniya Arif was not abducted and she had left the house of her parents with her own will and had solemnized Nikah with Muhammad Younas (appellant) with her consent.
21. From the above stated facts, an offence under Section 365-B, P.P.C., is not established. If a person is sought to be prosecuted for the offence under Section 365-B of P.P.C., must have kidnapped or abducted any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing to be likely that she will be forced or seduced to illicit intercourse whereas from the Nikan Nama dated 25-8-2009 (Ex.DA), it reveals that the abductee entered into Nikah with the appellant prior to alleged incident.
22. The alleged victim admitted that she filed a suit for dissolution of marriage in District Mandi Baha-ud-Din wherein factum of Zina is not mentioned. The said suit was decreed in her favour vide order dated 3-4-2010. From the above discussion of the evidence, I am of the considered opinion that no offence as contemplated under sections 365-B and 376, P.P.C. Is made out as the prosecution has miserably failed to bring on record the evidence that abductee-Mst. Saniya Arif was abducted or induced to compel for marriage against her will or she was forced for illicit intercourse or that there was even likelihood of her being forced or seduced to illicit intercourse.
Even no case under Section 376, P.P.C., is made out. Thus the conviction and sentences under Sections 365-B and 376, P.P.C., are not sustainable in law.
23. For what has been discussed above, I am of the view that prosecution has not been able to prove its case beyond any shadow of doubt. Resultantly, Criminal Appeal No,144-2013 against the conviction and sentence of appellant namely Muhammad Younas in case FIR No,306, dated 10-9- 2009, offence under Sections 365-B and 376, P.P.C., registered at Police Station, Saddar Lalamusa is hereby accepted. The appellant be set at liberty forthwith, if not required to be detained in any other case.