' Gohar Rehman, his brother Sher Zaman, his wife Mst. Rahim Jan, his son Zahir, his daughter Mst.
Shamim Bibi and Mst. Anwar Jan all residents of Malach, District Abbottabad were charged and tried by the learned Sessions Judge, Abbottabad under sections 16 and 19(2) of Ordinance VII of 1979. The learned trial Court vide his judgment dated 6-10-1982 while acquitting the rest of the accused convicted Zahir and Mst. Anwar Jan for offences charged under sections 16 and 19 (2) of Ordinance VII of 1979 and sentenced both of them to 5 years' R. I. Each plus a fine of Rs, 1,000 each, in default of payment of whereof to undergo imprisonment further period of one year. Both the accused were also awarded 15 stripes each. The above judgment has been challenged through the present appeals by both the convicts.
2. The prosecution machinery was set in motion when on 27-10-1981 at 11-00 p. m. Muhammad Saddique the brother-in-law of Mst. Anwar Jap made a report at the police station Donga Galli alleging therein that today at 7-00 in the morning, as usual, his sister-in-law Mst. Anwar Jan wife of Muhammad Bashir his brother had gone to Baghan Forest for collecting leaves but did not return till afternoon. He became suspicious and left to locate her whereabouts. In the process at evening time near Nathia Gali he met Sher Ahmad and Yousaf who told him that they had seen Mst. Anwar Jan with Zahir at the Baghan Forest talking to each other and when they enquired as what was the matter Zahir told them that he was out for hunting. At Peshiwela when the mentioned persons again went to Baghan Forest they saw near the Pine Hotel Mst. Anwar Jan in the accompany of Zahir, his father Gohar Rehman, his uncle Sher Zaman, his mother Mst. Rahim Jan and his sister Mst.
Shamim Bibi going towards the Government School Nathia Galli. On receipt of the above information he (Muhammad Saddique) sent Khushal and Jalal the uncle of Zahir accused in a Jirga for the return of Mst. Anwar Jan but with no result. The complainant further alleged that earlier too he had once seen Zahir and Mst. Anwar Jan talking to each other and he had demanded of Zahir not to come near his house and also reprimanded his womanfolk to desist from talking to Zahir. His brother Muhammad Bashir had gone to Dubai for earning his livlihood. As a result of his wedlock Mst. Anwar Jan, they have a son, aged 6/7 years and a daughter aged 4 years. Zahir who is unmarried has enticed away his sister-in-law in order to enter into a marriage with her and in this effort the other accused are assisting him.
' This report was recorded by Sadiq Hussain H. C. Police Station Donga Galli P. W. 10 according to the dictation of the complainant which was read over to him and after accepting it to be correct was signed by him. The report was' then handed over to Muhammad Arif S. H. O. Police Station Donga Galli P. W. 11 who proceeded to the spot, prepared its site plan Exh. P. B. Correctly. He recovered a Chaddar containing leaves Exh. P. 3 vide Memo. Exh. P. W. 3/1. On 30-10-1981 he alongwith Sadiq Hussain P. W. 10 reached the cattle-shed of Jeenda Khan situated in the limits of Jansa near Bagla arrested Zahir and Mst, Anwar Jan from there vide recovery memo. Exh. P. W. 4/1. The sketch in respect of the cattle-shed is Exh-PC. The investigation officer after the arrest of the two accused took into Possession shalwar Exh-P. 1 of Mst. Anwar Jan through lady constable and shalwar Exh. P. 2 of Zahir accused and sealed them into separate parcels vide memo. Exh. P. W. 1/1 and the same were sent to the Chemical Examiner whose result is Exh. P. Q. Both Mst. Anwar Jan and Zahir were got medically examined and after the completion of the investigation the accused were challenged under section 5/10/11/16 of Ordinance VII of 1979, and the case was sent to the Court of Illaqa Magistrate, who after completing the formalities required under the law sent up the case for trial to the Court of the learned Sessions Judge.
' The prosecution at the trial, in support of its case, produced as many as 12 witnesses. The appellants denied the charge and pleaded innocence. Mst. Anwar Jan as against the charge stated that on the day of occurrence she was cutting the grass and plucking leaves when accused came to the spot and they took her forcibly through jungle to a Dhara and all the accused except Zahir pushed her inside the Dhara and left the accused Zahir in the Dhara. Remaining accused while going back locked the door from outside which was opened by the police the following day.
Again stated that accused Zahir was not left with her in the Dhara. Adding to above her statement she also stated that none of the accused committed sexual intercourse with her.
' After considering the evidence the trial Court passed the impugned der which is the subject- matter of the two appeals.
4. I heard the learned counsel for the parties and perused the record. In this case besides convicting the appellants under section 16 of the Ordinance VII of 1979 the learned trial Court has also convicted and sentenced them under section 19 (2) ibid. I would in the first instance, like to deal with the conviction and sentence of the appellants under the latter provision of law. Section 19, subsection (2) of Ordinance VII of 1979'reads as follows:- "Whoever is guilty of the abetment of an offence liable to hadd under this Ordinance shall be liable to the punishment provided for such offence as tazir."
5. The plain reading of the above provision shows that it empower the Courts, to imposed punishment to an abettor who is guilty of an offenc liable to hadd. In the case in hand no offence liable to hadd has been mad out against any of the appellants therefore, the provision of section 19
(2) 4 of the said Ordinance has obviously been misapplied by the learned trial Court. The conviction and sentence of the appellants under the above provision of law is therefore had and is hereby set aside. Both the appellants are thus acquitted of the charge under section 19 (2) of the Ordinance VII of 1979.
6. As far as the charge under section 16 of the Ordinance is concerned the trial Court has based the conviction of the appellants on the evidence of Muhammad Saddique P. W. 8, Sher Ahmad P. W. 9, the medical evidence, report of the Chemical Examiner and recovery of two appellants from the cattle-shed situated near Jansa. I have thoroughly examined the evidence referred to above and am afraid I could not reconcile myself with the findings arrived at by the learned Sessions Judge.
Mst. Anwar Jan is admittedly a married woman having children and is the cousin of co-appellant.
Muhammad Saddique P. W. Or for the matter of that none of the inmates of the house saw Zahir appellant to take away or entice Mst. Anwar Jan from the house. It was Sher Ahmad P. W. And Yousaf abondoned P. W. Who had allegedly seen the appellants in the morning in the forest talking to each other while collecting leaves. It was again these two very persons who had seen both the appellants in the afternoon going towards the Government House, Nathia Galli and were at that time accompanied by the acquitted accused, and ultimately it was these two persons who had informed Muhammad Saddique complainant that they had seen his sister-in-law going with Zahir.
Sher Ahmad P. W. And Yousaf the given, up P. W. Therefore, were very important witnesses but the prosecution in its wisdom produced only Sher Ahmad. This witness being partisan he being the servant in a hotel owned by the two uncles of Muhammad Saddique' . W. The fact that Sher Ahmad P. W. I not a truthful witness is manifestly clear because he unnecessarily rate dishonestly implicated the acquired accused in the commission of the crime. At In my view this fact alone is sufficient to discredit the veracity of this witness and hence this evidence is discarded. As far as Muhammad Siddique P. W. Is concerned at the trial he deposed that he had sent Khushal and Jalal his and Zahir's uncles to the house of Gohar Rehman (the acquitted accused) for the return of his sister-in-law. He also deposed that he had been searching Mst. Anwar Jan alongwith Molangi Khan, Azad Khan, Akbar Khan, etc. Etc. But strangly enough the prosecution has not produced any of the above persons to substantiate or support the versions given by Saddique P. W. The C non- production of these persons clearly suggests that had they been produced they would have not toed the prosecution line. Muhammad Saddique P. W. Also deposed at the trial that Sher Ahmad and Yousaf were not serving in the hotel of his uncle at Moochi Dhara, but this has been contradicted by Sher Ahmad P. W. 9 who admitted that he was working as servant in the hotel run by the uncle of Muhammad Saddique P. W. Another important fact which militates against the conduct of Muhammad Saddique P. W. Is that according to his version Mst. Anwar Jan was residing in his house and under his protection but he would not accompany the police raiding party to the cattle-shed wherefrom both the appellants were allegedly recovered. The attitude of Muhammad Saddique P. W. Thus cleary indicates that either be was not at all interested in the recovery of his sister-in-law or the whole matter had been cooked I p with ulterior motives and this I saw so because the recovery of the two appellants is also not free from doubt-reference in this respect is invited to the statement of Mohabat Khan P. W. 4 the only independent witness to the so-called recovery, who deposed that no recover and arrest of the accused was made in his presence from any shed and that the recovery memo. Exh. P. W. 4/1 was got signed by him by the police at his shop at Moochi Dhara. Hence his version also cannot be relied upon.
8. As for as the medical evidence is concerned, it too is of little significance because firstly no charge of adultery has been laid at the doors of the appellant and secondly Dr. Mrs. Rifhat Nasim P.
W. 7 admitted at the trial that she could not say positively whether the woman examined by her was Mst. Anwar Jan becuase she did not note any mark of identifications of Mst. Anwar Jan. The appellant e. Mst. Anwar Jan was taken and produced before the Lady Doctor by Fazal Dad A. S. I. For her medical examination but this man has also not been produced by the prosecution top support its version that he had produced none, but Mst. Anwar Jan before the Lady Doctor for her medical examination. Mst. Anwar Jan appellant has categorically denied sexual intercourse with her by Zahir or for that matter the other accused, therefore, the opinion of the Chemical Examiner also loses its significance. Both the appellants are cousins inter se one is married with two frown up children, the other was to be married soon, therefore their mere talking to or meeting each other near the house of Muhammad Saddique P. W. Or in the forest would not lead one to believe that they would be indulging in immoral activities.
8. In view of the above I accept the appeals, set aside the conviction and sentence of the appellants and acquit of the charge. They have already been released on bail and their bail bonds are discharged.