' The two convicts namely, Mst. Ehsan Begum and Zaman Shah filed separate appeals against the order dated 13-7-1982 passed by Mr. Muhammad Salim, Additional Sessions Judge, Peshawar. I propose to dispose of these appeals together by this order.
' The learned Additional Sessions Judge convicted Mat. Ehsan Begum and Zaman Shah both under different sections of the Pakistan Penal Code as well as the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He sentenced Mst. Ehsan Begum under section 406, P. P. C. To one year's R. I. And Rs, 9,000 as fine (in default 6 months' S. I.) under section 411, P. P. C. To one year's R. I., under section 10(2) of the Ordinance VII of 1979 to five years' R. I. And thirty stripes and under section 16 of the same Ordinance to five years' R. I. And five stripes.
3. He sentenced Zaman Shah under section 406/109/34, P. P. C. To one year's R. I. And Rs, 9,000 fine (in default 6 months' S. I.), under section 411, P. P. C. To one year's R. I. ; under section 419, P. P. C. To one year's R. I., under section 10(2) of the Ordinance to five years' R. I. And thirty stripes and under section 16 thereof to five years R.I. And 15 stripes. All the sentences were ordered to run concurrently except the sentence passed in default of payment of fine.
4. The prosecution case is that on the 28th of April, 1979. Zaman Shah abducted Mst. Fhsan Begum, who took with her ornaments, clothes as well as Rs, 60,000 belonging to the complainant Azam Khan P. W. 7, her husband. They stayed first in Tashfeen Hotel, Rawalpindi, and then went to Murree where both of them stayed in Hotel Gulbarg. On the 30th of April, 1979 the Police arrested both the appellants from Gulbarg Hotel of Murree and recovered from the possession of Mst. Ehsan Begum a sum of Rs, 42,950, some clothes as well as ornaments. This recovery was made by Sultan Muhammad Khan, A. S. I. (P. W. 10) in the presence of Khan Afsar, P. W. 11, who belongs to Murree and Mst. Jamila, Lady Constable (P. W. 12).
5. The Investigating Officer took into possession the register of Gulberg Hotel which contains the entries of guests staying there. The entry was signed by Zaman Shah in the pseudo name of Liaqat Khan son of Akbar Khan.
6. It may be stated that the first information report of this offence of abduction which is said to have taken place in the morning of 28th of April, 1979 before 11 a. m. Was recorded in the police station at 10.40 p. m. The same day. The two sisters of Zaman Shah namely Saeeda Begum and Jehan Eegum were named in the first information report although there is absolutely no case against them. They were arrested and they furnished on being questioned, the information about the whereabouts of Zaman Shah in Rawalpindi.
7. It is not necessary to give all the details of the bulky evidence on the record, which is not very helpful since it is clear that the evidence which could have brought home the guilt to the two appellants was not produced and even the witnesses produced have not been examined on many aspects which could prove the offence against them.
8. It is very strange that a person should be convicted twice once under' section 406 and again for an offence under section 411, P. P. C. Mst. Ehsan Begun was convicted first under section 406 which is itself a substantive offence for breach of trust of money entrusted to her by her husband. She could not legally be convicted under section 411, P. P. C. For keeping that money with her. The conviction and sentence of both the appellants under section 411, P. P. C. Is, therefore, set aside.
9. Zaman Shah, appellant was convicted under section 419, P. P. C., because he is said to have cheated the Hotel management by giving his name wrongly as Liaqat Khan son of Akbar there and by making incorrect entry of that name in the Hotel register. The only evidence on this point is that of the handwriting Expert Zahir Gul P. W. 1, who stated that the writing on the register compared with the specimen signatures. The lessee of the Hotel, who is running it namely Syed Yaqoob Shah P. W.
15 was produced in Court to prove a recovery memo. Which does not advance the prosecution case. It is the recovery memo. Of a purse containing Rs, 889, Identity Card, some clothes and a wrist watch belonging to Zaman Shah. No question was put to him whether Zaman Shah, appellant had writien his name as ,Liaqat or Akbar or had signed the relevant entries on the register. No other witness has been produced in support of that assertion in Court. The result is that we are left with the sole evidence of the handwriting Expert. It is an established proposition that no conviction can be maintained only on such Expert evidence. The charge under section 419 also fails.
10. There is no evidence worth the name which may bring home the charge under section 16 against either of the appellants. Section 16 of the Ordinance provides that whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall be punished under that section. There is no evidence of either enticing away or taking away in the sense that some type of offer emanated from Zaman Shah.
11. The only evidence on the point of their going by that is that of two waj takkar witnesses, namely, Adam Khan (P. W. 8) nephew of Azam Khan, complainant, and Akbar Khan (P. W. 9), his servant. It is stated that Akbar Khan was sent by Azam Khan to bring his meals from his house and he had gone for that purpose from the shop of Azam Khan to his house. In the way he met Adam Khan also. Both of them saw Mst. Ehsan Begum and Zaman Shah going together in a rickshaw, alongwith the two children of Mst. Ehsan Begum. Akbar Khan went to the house of Azam Khan, took articles of food from there and went to the shop of Azam Khan where he gave him this information. Azam Khan rushed to his house and found not only his wife absent but also the money and the ornaments missing from the box.
12. The evidence of waj takkar witnesses has not impressed me at all. In reply to cross-examination question, Akbar Khan, who is said to have noticed the appellant going together in the rickshaw, stated that the rickshaw was coming from behind him, which makes it doubtful that he had seen the persons riding the rickshaw. There is also some contradiction in the statements of these two witnesses, since Azam Khan stated that he did not notice whether Mst. Ehsan Begum had tried to draw his attention, but Akbar Khan is very clear in this respect and he stated that "it is correct that P. W. Adam Khan was called for help from the rickshaw. Accused Mst. Ehsan Begum asked for help from the rickshaw." Both the witnesses were chance witnesses. This D story is not believed.
13. The first information report was also delayed and there is no reasonable explanation for this delay. The only explanation is that the complainant had been searching for accused persons. This explanation is not reasonable in the circumstances of this case, in which not only according to him, two of the witnesses had seen these two persons going together, out of whom one (his wife) had also taken a big sum of money amounting to Rs, 60,000 which belonged to him, in addition to the ornaments and clothes. In the natural course of events he should have rushed to the police station.
14. I am, therefore, of the view that no offence under section 16 of the Ordinance is proved against Zaman Shah appellant. I am really surprised E that the learned Sessions Judge convicted Mst.
Ehsan Begum under section 16 for her own abduction. If she was a party to her abduction, it would clearly F show that it could merely be a case of elopement. Mst. Ehsan Begum in her own statement has attributed her departure from the house to a second marriage of Azam Khan with some other lady, but it is clear from the statement of Azam Khan that a day prior to her departure, there was some quarrel between the husband and the wife. The possibility cannot therefore be excluded that she left the house along with money belonging to her husband on account of that quarrel. This further reinforces my decision that no case under section 16 of the Ordinance is made out in this case.
15. There is no evidence to bring home the guilt under section 10 of the Ordinance to either of the appellants. It is said that both of them stayed in Tashfeen Hotel, Rawalpindi on the 28th of April, 1979. Abdul Jalil Qamar (P. W. 19) and. Abdul Razaq (P. W. 20), who are connected with the Hotel were produced for this purpose. In the register of Hotel Tashfeen the name of Zaman Shah is clearly recorded, but there is nothing in the evidence of these two witnesses that Mst. Ehsan Begum was with Za man Shah or had stayed in the hotel. In the absence of such identification, their evidence is not of any consequence.
16. It is then said that both the appellants stayed in the same room in Gulberg Hotel on the night between the 29th and 30th of April, 1979. Entry in-the Hotel register is in the name of Liaquat Khan.
Syed Yaqoob Shah (P. W. 15), who runs the Hotel, neither proved the above entry of Zaman Shah nor made a statement that the appellants stayed together, during the night in the same room. In cross-examination only a bare statement of their stay in the Hotel is made. In order to prove that they had committed the offence of Zina it was necessary either to prove the offence by the evidence of eye-witnesses, or at least the circumstantial evidence of persons who had seen them both closetted together during night in the same room of the Hotel. No such evidence was produced.
16-A. The only circumstance relied upon by the learned Assistant Advocate-General is of the report of the Chemical Examiner on the vaginal swabs a well as semen stains on the Shalwar of Mst.
Ehsan Begum but this is not relevant for the simple reason that Mst. Ehsan Begum is a married lady and had been living with her husband till less than 3 days before her arrest and the possibility that the semen may be of her own husband cannot be ruled out.
17. At this stage, reference may be made to the statement of Ahmad Mustafa, Chemical Examiner P.
W. 13, who had examined semen stains on the Shalwar. In cross-examination he stated that chemical examination as well as Serology could determine the person to whom the seminal stains belonged. He stated that he had himself examined these cases for groupin purposes to find out whether seminal stains belonged to the accused but in the present case, this was not done, because it is not possible to give the grouping without the specimen of the suspected person. P. W.
17 Doctor Khalid Mahmood, the other Chemical Examiner, who had examined the vaginal swabs also stated that grouping could be done but this was the function of the Serologist.
18. If there had been evidence based on grouping that the seminal stains on the Shalwar or on the vaginal swa bs were of Zaman Shah it would have been sufficient for convicting both the appellants under section 10 for commission of the offence of Zina. In the absence of such evidence however, this cannot be done. The case under section 10 is not proved on the record.
19. Mst. Ehsan Begum had taken away with her ornaments, clothes and Rs, 60,000 out of which a sum of Rs, 42,950 had been recovered on the 30th of April, 1979 from her possession. The clothes and ornaments definitely belonged to her as stated by Azam Khan in his own statement. Mst. Ehsan Begum admitted in her statement under section 342, Cr. P. C. That the money which was recovered from her belonged to her husband and it was kept in trust with her. The case of Azam Khan is that he had kept with her a sum of Rs, 60,000 which he had secured from the sale of his shop. Mst. Ehsan Begum admitted that she had Rs, 60,000 but she stated that only the amount recovered from her belonged to her husband and whatever she had spent belonged to her.
20. This evidence and admission is sufficient to establish that a sum of Rs, 60,0000 was entrusted by Azam Khan P. W. To his wife which she had taken away with her on leaving the house alongwith her clothes and ornaments. The way in which she had left proves that she intended to appropriate what was in trust with her and had already .Appropriated part of it. The case of breach of trust is, therefore, established against her. She has been rightly convicted under section 406, P. P. C. The sentence against her is also not severe under that section. Her appeal to that extent is dismissed.
21. The only question that remains for consideration is whether a case under section 406/109/34 has been proved against Zaman Shah, appellant. There is no evidence whether Zaman Shah spent any amount out of the sum of Rs, 60,000. There is no evidence to connect the appellant Zaman Shah with this offence either. We cannot act upon conjectures in the administration of criminal justice. There must be sufficient evidence to prove each charge. The order of conviction and sentence under the above sections must also be set aside.
22. The upshot of the above discussion is that the appeal of Zaman Shah is allowed and he is acquitted of all the charges. He shall be released forthwith if not required in any other case.
23. The appeal of Mst. Ehsan Begum is allowed against her conviction and sentence under sections 10 and 16 of the Ordinance and section 411, P. P. C. And the conviction and sentence under those sections is set aside. However, her appeal against her conviction and sentence under section 406, P. P. C. Is dismissed. She shall be taken into custody.
24. Before parting with this case I would like to observe that the Police investigation in this country is not keeping pace with scientific developments. If facilities for grouping of semen be available, as indeed they are, it is not understandable why the Medical Officers examining the male for potency should not obtain the specimen of semen of the accused so that no doubt be left about the identity of the person committing Zina or. Zina-biljabr. The Police Officers in their reference to the Medical Officers should also in such cases invariably request the Doctor concerned to take the specimen of semen of the male accused. They should send them for chemical examination and serology alongwith vaginal swa bs and clothes/cloth etc. Having seminal stains.
25. Copies of the judgment be sent to the Secretary Interior, Secretary Department of Law, Home Secretaries and the Inspector-General Police of the Provinces.