Muhammad Shamshad appellant has challenged the order of convic--tion passed by Ch. Anwar Ali Magistrate Section 30, Jhelum against him on 8th July, 1978 whereby he was found guilty under section 366/376, P. P. C. And was sentenced to undergo 3 years' R. I. Under section 366, P. P. C. And 5 years' R. I. Under section 376, P. P. C. Both the sentences were ordered to run concurrently.
2. The case against the appellant was that on 11th October, 1977 at about 5.30 p. Va. He had abducted Mst. Zaneb Bibi when she alongwith her brother's wife Mst. Gulzar Begun was returning from Jadah to her village Kountrila in a tonga after taking medicine for her son Faisal Mahmud from a doctor. The appellant had contracted marriage with Mst. Zaneb Bibi in 1975 but after a year of the marriage he had divorced her. On the day of occurrence the appellant forcibly got into the tonga in which Mst. Zaneb Bibi and. Mst. Gulzar Begun were going towards their village. He threw down Mst. 'Gulzar Begun from the back seat of the tonga and after catching hold of Mst. Zaneb by her pig tail, who was sitting on the front seat, he drove away the tonga to his house in Kala Gujran.
Muhammad Yasin a relative of Mst. Zaneb Bibi and one Shaukat Ali who were standing near a khokha by the road side saw the occurrence. They ran after the tonga in order to rescue Mst. Zaneb Bibi from the appellant but the appellant drove away the tonga at a fast speed. Muhammad Yasin lodged F. I. R. Exh. P. C. At Police Station Sadar Jhelum on 12th October, 1977 at 10-30 a. m. He stated in the F. I. R. That he could not report the matter earlier as he had been trying to find out the whereabouts of Mst. Zaneb Bibi though without any success. After the registration of the case Manzoor-ul-Haq Sub-Inspector recovered Mst. Zaneb Bibi from the house of the appellant and on the next day produced her before a Magistrate who recorded her statement under section 164, Cr.
P. C. He also got her medically examined on the same day. The appellant was, however, got medically examined on 15th October, 1977. After completion of the necessary investigation of the case the appellant was challaned.
3. At the trial the appellant did not admit the charge. The pro--secution in order to prove its case against the appellant examined as many as 14 witnesses. P. W. 5 Muhammad Yasin, Mst. Zaneb- Bibi P. W. 6, Mst. Gulzar Begun P. W. 7 and Shaukat Ali P. W. 8 gave ocular account of the incident.
Rehmat Khan P. W. 1, Secretary Union Council, Mohor was examined to show that on 24th June, 1976 a notice of talaq from the appellant was received in the Union Council intimating that the appellant had divorced his wife Mst. Zaneb Bibi. After entering the notice in the relevant register, parties were required to nominate their arbitrators on 24 August, 1976. The parties, however, did not appear before the Chairman on 24th August, 1976 for reconciliation and as such certificate of effectiveness of talaq was issued on 24th September, 1976 Muhammad Rafique P. W. 2 stated that he had affixed his thumb-impres--sion on the notice which the appellant had addressed to his wife. Karam Elahi P. W. 3 who was also examined in support of the statement of Muhammad Rafique P. W. 2, however, did .Not know the contents of the notice written by the appellant. He was declared hostile at the request of the prosecution and was allowed to be cross-examined Manzoor-ul-Haq P. W. 4 was produced by the prosecution to prove certain documents but his statement was not recorded as the relevant documents were not available Muhammad Amin P. W.
9 had witnessed memo. Exh. P A which was prepared by the police after taking into possession certain documents from the office of the Union Council. Dr. Abdul Shakoor P. w 10 deposed that after examining the appellant he had found him physically fit to perform sexual intercourse.
Zulfiqar Ahmad P. W. 11 was examined by the prosecution to show that Mst. Zaneb Bibi and Gulzar Begum had come to his dispensary for taking medicine for Faisal Mahmood who was suffering from fever P. W. 12 Manzoor-ul-Haq Sub-Inspector had investigated the case, while P. W. 13 Mirza Ahmad Afzal Magistrate bad recorded the statement of Mst. Zaneb Bibi under section 164, Cr. P. C.
The last witness examined by the prosecution was P. W. 14 Lady Doctor Zubaida Kbatoon who after medically examining Mst. Zaneb. Bibi bad taken two vaginal swabs, which were sent to the Chemical Examiner for examination. Report Exh. P. K. Received from the Chemical Examiner showed that the swa bs had been found stained with semen. Dr. Zubaida Khatoon, however, could not say definitely whether Mst. Zaneb Bibi bad been subjected to rape as she had found no injury on any part of her person.
4. After the close of the prosecution case the appellant, in his statement recorded under section 342, Cr. P. C. Disclosed that Mst. Zaneb Bibi was his legally-wedded wife ; that she had come to his house of her own accord ; and that she had performed her marital obligations. The appellant also examined 3 witnesses in his defence. Ch. Dost Muhammad D: W. 1 stated that he bad enquired from Mst. Zaneb Bibi as to how she had returned to the house of the aplellant. She had told him that she had come to the house of her husband alongwith her brother's wife of her own accord.
Muhammad Iqbal D. W. 2 stated that on 11th October, 1977 the appellant had brought his son Faisal Mahmood for treatment in a hospital at River Road, Jhelum. Lehrasap D. W. 3 was the tonga driver, who was originally cited as a prosecution witness, as the appellant had forcibly driven away his tonga to his house when Mst. Zaneb Bibi and Mst. Gulzar Begun were going to their-village in the said tonga, was not examined by the prosecution as it was stated that he had been won over by the accused. He deposed that the appellant had taken his wife and one other woman in his tonga to Dr. Zamurrad and had obtained medicine for his son. According to him the appellant had not abducted his wife as she herself had gone to his house at Kala Gujran.
5. The learned trial Magistrate, after relying on the prosecution evi--dence found the appellant guilty of offences punishable under section 366, and section 376, P. P. C. And sentenced him as noticed earlier.th
6. The learned counsel for the- appellant submitted that the pro--secution had not examined any independent and disinterested witness to prove the story of abduction of Mst. Zaneb Bibi.
Muhammad Yasin P. W. 5 and Gulzar Begun P. W. 7 were both related to her while Shaukat Ali P. W. 8 who was a resident of village Dina where he also carried on business, was a chance witness as be had not been able to give any satisfactory reason for his being present at the khokha alongwith Muhammad Yasin P. W. On the day of occurrence. The occurrence had taken place on a busy road.
There was a bank and hotel also near the place of. Occurrence, but no one had come from there when the appellant had driven away Mst. Zaneb Bibi in the tonga even after her alarm. It was further contended by the learned counsel for the appellant that the prosecution had failed to prove that the matrimonial ties between the appellant and his wife Mst. Zaneb Bibi had come to an end and as such the appellant could not be held guilty of abduction of his own wife and committing rape upon her. The fact that no report was immediately made to the police after the occurrence also indicated that the prosecu--tion story was a mere concoction and the charge against the appellant had been trumped up by the police at the instance of Muhammad Yasin and his brother Muhammad Amin who were inimical towards the appellant.
7. I have considered the arguments of the learned counsel for the appellant and have also heard the learned counsel for the State. Mst. Zaneb Bibi P. W. 6 has stated that after the appellant bad divorced her there was no reconciliation and that the marriage was not subsisting at the time of occurrence. The prosecution in order to prove her above assertion has relied on the statement of Rahmat Khan P. W. 1 and the copies of notice of talaq, Exh. P. 1 and order of the Chairman Union Council, Mohor Exh. P.
2. Copy of notice Exh. P. 1 shows that on 18th June, 1976 the appellant had pronounced talaq in the presence of Muhammad Rafique and Karam Elahi and had sent intimation to the Chairman of the Union Council concerned for further necessary action. He had also sent copy of the notice to Mst. Zaneb Bibi. The prosecution has examined Muhammad Rafique and Karam Elahi as P. Ws. 2 and 3, respectively. Muhammad Rafique has stated that he had affixed his thumb impression on the notice which the appellant had addressed to his wife. In his cross- examination, he has stated that Mst. Zaneb Bibi had been living in the house of the appellant even after the aforementioned notice and that a son was also born to her after she had returned to the house of her husband. According to him hfst. Zaneb Bibi was brought to the house of the appellant by her brother's wife Mst. Gulzar Begum Karam Elahi P. W. 3, as noticed earlier, has not supported the prosecu--tion. No reliance can be placed on him in view of the inconsistent statement made by him in cross-examination by the Prosecuting Sub---Inspector and the defence counsel. Rahmat Khan P. W. 1 has stated that notice was issued to Mst. Zaneb Bibi after receipt of intimation of talaq from the appellant but there is nothing on the record to show whether the said notice was served on her or not. Similarly there is no evidence to show that the notice issued to the appellant requiring him to nominate an arbitrator was served on him. He has further disclosed that the certificate of effectiveness of talaq was not collected by either of the parties nor was it sent to them by the office. The learned trial Magistrate has-found that the talaq pronounced by the appellant on 18th June, 1976 had become effective after 90 days from 24th June, 1976 when the notice of talaq was received in the office of the Union Council. According to him the mere fact that the parties had not taken part in the arbitration proceedings was of no consequence and it could not stop the operation of subsection (3) of section 7 of the Muslim Family Laws Ordinance, 1961 under which a talaq becomes effective on the expiration of 90 days from the day on which notice of talaq is delivered to the Chairman. It appears that the learned trial Magistrate has taken no notice of the statement made by Muhammad Rafique P. W. 2 that Mst. Zaneb Bibi had gone back to the house of her husband after the notice of talaq was written by her husband and that she had been living in his house as his wife and had given birth to a son also. The learned trial Magistrate has also failed to notice the provisions of subsection (3) of section 7 of the Muslim Family Laws Ordinance, 1961 which refer to the revocation of talaq. It is provided there that a talaq, unless revoked expressly or otherwise, shall not be effective until the expiration of 90 days from the date on which notice of talaq is delivered to the Chairman. As it is evident, a talaq may be revoked by the husband expressly or otherwise. It is not necessary for him to intimate the Chairman in writing that he has revoked the talaq before the expiration of 90 days. The husband may change his mind after sending the notice of talaq to the Chairman and may decide to continue the matrimonial ties. He may revoke the talaq even by conduct as for instance he may receive back his wife in his house and resume matrimonial relations with her. But revocation of talaq must take place before the expiry of 90 days from the date of delivery of notice of talaq to the Chairman. In the case under consideration Muhammad Rafique P. W. 2 has specifically stated that Mst. Zaneb Bibi had been living in the house of the appellant after the notice of talaq was sent by him. There is no reason to disbelieve him when it is found that none of the parties had appeared before the Chairman of the Union Council on the date fixed by him for reconciliation proceedings. The onus to prove that no marriage was subsisting between the appellant and Mst. Zaneb Bibi was on the prosecution, which under the circumstances of the case, has not been satisfactorily discharged. The mere fact that the appellant had sent notice of talaq to the Chairman of the Union Council and that a certificate of effectiveness of talaq was issued by the Chairman on 24th September, 1976 is nor sufficient to prove that the matrimonial ties between the" appellant and his wife had coins to an end. The learned counsel for the appellant has referred to Fahmida Bibi v. Mukhtar and others (PLD 1972 Lah. 629) where it was held that there was no provision of law under which the Chairman of Union Council was required to issue a certificate to make the divorce effective and if any such certificate was issued by him it could be used as a proof of divorce. The prosecution in the present case, therefore, cannot rely on Exh. P. 2, copy of the order of Chairman nor can it be used as a piece of evidence to prove that Mst. Zaneb Bibi's marriage with the appellant had dissolved when the occurrence took place.
8. The prosecution case that the appellant had forcibly taken away Mst. Zaneb Bibi to his house in the presence of Muhammad Yasin and Shaukat Ali P. Ws. Seems to be highly improbable and stands disproved by the conduct of Muhammad Yasin who is related to Mst. Zaneb Bibi. According to him Mst. Zaneb Bibi was forcibly taken away by the appellant to his house but it is strange that he did not take any step to recover her from his house. He did not report the matter to the Police immediately after the occurrence and the explanation given by him for not doing so is simply absurd. In the F. I. R. He had stated that he had been trying to find out the whereabouts of Mst.
Zaneb Bibi but in his statement as P. W. 5 he has stated that he had been trying to settle the matter amicably and that he had not reported the matter to the Police on the same day when the occurrence had taken place as no elder of his family was present in his house. Mst. Zaneb Bibi had been taken away by the appellant to his house according to the prosecution case and that fact was within the knowledge of Muhammad Yasin. There was, there--fore, no question of ascertaining the whereabouts of Mst. Zaneb Bibi as stated by Muhammad Yasin in the F. I. R. Again, according to the prosecution case, Mst. Zaneb Bibi had already been divorced by the appellant and that he had abducted her after the divorce. Under the circumstances the question of any amicable settlement with the appellant for the return of Mst. Zaneb Bibi hardly arose.
9. Mst. Gulzar Begum has deposed that she bad sustained some bruises when she was thrown out from the tonga by the appellant, but her medical examination was not considered necessary. The learned trial Magistrate has expressed the view that the omission on the part of pro--secution to get her medically examined is of no consequence as it was not a hurt case and the appellant was not being prosecuted for causing injuries to her. As the presence of bruises on the person of Mst.
Gulzar Begum, could be used as a piece of corroborative evidence by the prosecution an adverse inference can be drawn against the prosecution that she was not got medically examined as there were no bruises on her person and that B she has made a false statement when she says that she had received bruises when she was thrown out from the tonga by the appellant.
10. The failure of the prosecution to examine any independent witness of the locality where the alleged occurrence took place also raises a strong presumption against the prosecution. Both Mst.
Zaneb Bibi and Gulzar Begum have stated that a number of persons had seen the occur--rence when they raised hue and cry but none of them has been examined as a witness by the prosecution.
11. The investigation of the case was also not conducted properly by the Police. According to Manzoor-ul-Haq P. W. 12 Mst Zaneb Bibi was recovered a day before her statement was recorded by the Magistrate. She was kept in the police station for a night for which no permission was obtained from any Magistrate. She could not be produced on the day of her recovery as the Court time was over. None of her relatives or even the complainant was present at the Police station when she was brought and kept there for the night. The appellant's con--tention that he has been falsely implicated in the case by the Police at the instance of Muhammad Yasin and his brother Muhammad Amin does not appear to be wholly without substance in view of the above conduct of the Investigating Officer. Mst. Zaneb Bibi must have been kept at the police station in order to compel her to make a statement before the Magistrate against the appellant. Her medical examination on the following day by the Lady Doctor and the positive result received from the Chemical Examiner regarding the vaginal swabs taken by the Lady Doctor is of no value as she had been detained at the police station for one night and there is no plausible explanation as to why she was not got medically examined on the same day when she was recovered.
12. The evidence produced in defence is not of much importance but it does not effect the inference which may be drawn from the circum--stances noticed above. The prosecution had to prove its own case as no advantage can be derived from the weakness of the defence.
13. The upshot of the above discussion is that the prosecution has failed to prove the charge of abduction and rape against the appellant. 1 accordingly allow this appeal and set aside the order of conviction and D sentence passed against the appellant who shall be set at liberty if not required in any other case.