' CH. MUHAMMAD SIDD[Q, J.-The Additional Sessions Judge, Multan vide impugned judgment dated 14-11-1984 held guilty Mst. Shamim Akhtar and Imam Bakhsh, accused under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced each of them to undergo R. I. For a period of 10 years plus whipping numbering 30 stripes and a fine of Rs, 1,000, or in default of payment of fine further R. I. For a period of three months. However, Mst. Sakina alias Kali and Muhammad Ellahi were acquitted by the trial Court. Both the convicts have challenged their convictions and sentences through the present appeal.
2. In support of its case the prosecution produced six witnesses. Ghulam Muhammad (P. W. 1) is the complainant. He has deposed that Mst. Shamim Akhtar accused is wife of his brother Falak Sher.
On the day of occurrence, he had gone to Tatay Pur where he was standing with Zulfiqar. At about 4-00 p. m. He saw Ahmad Bakhsh alias Mana, Imam Bakhsh and Mst. Sakina alias Kali taking away Mst. Shamim on a motorcycle. He caught Mana accused who told them that Mst. Sakina, Mst.
Shamim and Imam Bakhsh were going to see their relations and would soon come back. Mst.
Sakina and Imam Bakhsh took away Mst. Shamim. Imam Bakhsh promised that after two days they would bring Mst. Shamim back to his house. The accused, however, did not return Mst. Shamim as promised. He lodged the report Exh. PD with the police on 6-11-1983 at 2-30 p. m. According to him, he had given the name of Imam Bakhsh accused in the F. I. R. As Ahmad Bakhsh due to mistake. His real name was Imam Bakhsh. On the next day of his report, Mst. Shamim was recovered from village Sameja Abad. He did not remember the name of the person from whose possession she was recovered. Imam Bakhsh accused was also present there. He had run away on seeing the police after leaving Jhumkas and Shawl (P. 1, P. 2 and P. 3) which were taken into possession vide recovery memo. Exh. PE attested by him. In cross-examination he admitted that they were three brothers namely himself, Falak Sher and Haq Nawaz. Mst. Shamim accused resided with Falak Sher as his wife for two year5. He stated that his brother Falak Sher was not of sound mind since his childhood. However, Mst. Shamim had never quarreled with Falak Sher and had never left his house due to any quarrel. He denied the defence suggestion that he tried to develop illicit relations with her. He stated that Zulfiqar, P. W. Is his cousin and so is Sarfraz, P. W. He admitted that Imam Bakhsh accused had registered a case at Police Station, Mumtazabad against himself and others for the abduction of Mst. Shamim accused in which Imam Bakhsh had alleged that this witness alongwith Haq Nawaz and Falak Sher had abducted his married wife Mst. Shamim. He further admitted that they were arrested in that ease and they got themselves bailed out. He has further deposed that when he had seen accused Imam Bakhsh taking away Mst. Shamim on motor-cycle, they were 2/3 paces from them. He and his companions had followed Imam Bakhsh and Mst. Shamim in order to catch hold of them. They had caught hold of them at a distance of about four miles and then they produced both of them at Police Station Saddar. It was after the production of accused Imam Bakhsh and Mst. Shamim at P. S. Saddar when he had lodged his report Exh. PD. Sarfraz and Zulfiqar, P. Ws. Had also followed the accused with him. When they produced Imam Bakhsh and Mst.
Shamim at the Police Station, they were kept there by the police and on the next day she was produced before the Court. Even after her statement, Mst. Shamim was kept by the police with it. It is further stated by this witness that after the recovery of Mst. Shamim from them in the case registered by Imam Bakhsh at P. S. Mumtazabad, Mst. Shamim had filed a suit for jectitation of marriage against Imam Bakhsh. In that suit for jectitation of marriage, Malik Ghulam Hussain, his maternal-uncle, Muhammad Ram/an, his cousin Zulfiqar, his cousin and Falak Sher, his brother were the witnesses of Mst. Shamim. That suit was afterwards withdrawn by Mst. Shamim after giving an application that the suit had not been filed by her. He denied the suggestion that because of abduction case against them at P. S. Mumtazaba.d, he had falsely implicated the accused in the present case.
3. Zulfiqar (P. W. 2) and Sarfraz (P. W. 5) are the witnesses of abduction of Mst. Shamim. Both these witnesses claim to be present with Ghulam Muhammad complainant at Tatay Pur where they saw Mst. Sakina, Mst. Shamim, Ahmad Bakhsh alias Mana and Imam Bakhsh on a motor-cycle. In cross examination, Zulfiqar, P. W. Had admitted his relationship with the complainant by saying that Ghulam Muhammad, P. W. And his brother Falak Sher are sons of his uncle. He has further deposed that Falak Sher was mentally a deranged person. He has also deposed that Imam Bakhsh accused had registered a false case that accused Shamim was his wife and had been forcibly taken away by the complainant Ghulam Muhammad and others. Ghulam Muhammad and others had got themselves bailed out. He denied the defence suggestion that Falak Sher had divorced Mst.
Shamim accused and then she had married accused Imam Bakhsh. He further denied the suggestion that because of his relationship with the complainant, he had made a false statement and that this case was registered by the complainant only in order to get the case cancelled against him. Similarly, Sarfraz, P. W. In cross-examination, has admitted that Ghulam Muhammad and Falak Sher are his cousins. He has stated that Falak Sher is of sound mind and he had not divorced Mst. Shamim and Imam Bakhsh was never married to Mst. Shamim. He, howe'er, admitted that Imam Bakhsh had registered a case against Ghulam Muhammad and others for the abduction of Mst. Shamim accused.
4. Lady Dr. Mrs. Rasheeda Suharwardi (P. W. 3) on 14.11-1983 at 10.40 a. m. Examined Mst. Shamim and found the following observations:- "(1) There was no mark of injury seen on any part of body including private parts.
(2) Hymen old torn, vaginal opening admitted two or three fingers.
(3) Breasts fully developed and pendulous.
' Two vaginal swa bs were taken and sent to Chemical Examiner, Lahore in a sealed packet for semen analysis. Result reserved subject to the Chemical Examiner's report. I have issued medical certificate Exh. PA which is in my hand and signed by me.
' According to Chemical Report No, 3405/S dated 7-12-1983 the swabs were found to be stained with semen. Report of Chemical Examiner is Exh. PB. In my opinion, sexual intercourse had taken place."
5. Dr. Akbar Saeed (P. W. 4) on 26-11-1983 medically examined Imam Bakhsh accused and found him medically fit to perform sexual intercourse.
6. S. I. Muhammad Yaqoob (P. W. 6) is the Investigation Officer in this case. In cross-examination, this Police Officer has admitted that there was no evidence against Mst. Shamirn till 14-11-1983. She was produced before the Magistrate but she did not support the prosecution case. Then she was sent to Darul Aman. It was from Darul Aman that he arrested her as an accused person and sent her to jail. It is further admitted by this witness that at the time of recovery of Mst. Shamim, she had proclaimed that she had eloped with the accused of her own will and consent. Imam Bakhsh accused had not produced any Talaq-Nama showing that Falak Sher had divorced Mst. Shamim. It is admitted by this witness that during the investigation of the case, it had come to his knowledge that Imam Bakhsh accused had previously registered a case against Ghulam Muhammad and others at P. S. Mumtazabad on the allegation of abduction of his wife. He denied the defence suggestion that he had made a dishonest investigation and had falsely involved the accused in this case.
7. Imam Bakhsh accused in his statement recorded under section 342, Cr. P. C. Denied the prosecution allegation. When asked why this case was made against him, he stated as under:- "Mst. Shamim is my legally-wedded wife. Previously, she was wife of Falak Sher brother of complainant. Falak Sher had divorced Mst. Shamim and then I contracted marriage with her. After my marriage with Mst. Shamim she was forcibly abducted by complainant Ghulam Muhammad and others for which I had registered a case against them. The complainant and others were arrested and hence in order to get back Mst. Shamim this case was got registered by the complainant."
' Mst. Shamim accused in her statement under section 342, Cr. P. C. Denied the prosecution allegations that she was legally-wedded wife of Falak Sher. However, according to her, previously she was married with Falak Sher but as he had given divorce to her, therefore, she had married her co-accused Imam Bakhsh. When asked if she had anything else to say, she stated as under:- "I was married with Falak Sher, brother of complainant who then gave me divorce. After his divorce I married Imam Bakhsh my co-accused. The complainant got annoyed and he wanted me back. He alongwith other forcibly abducted me from the house of Imam Bakhsh for which a case was registered and after my recovery I was given back to Imam Bakhsh. The complainant then lodged a false case against us in order to take revenge."
8. The accused produced five witnesses in defence. Allah Ditta (D.W. 1) has stated that he knew the parties. According to him, Falak Sher had divorced Mst. Shamim about three years before and then she had married Imam Bakhsh accused. He claims to be present when the Nikah of Mst. Shamim with Imam Bakhsh accused had taken place. He was made a witness of the Nikah. The other witness was Muhammad Nawaz (D. W.) It was due to enmity that Ghulam Muhammad complainant falsely involved the accused in this case. In fact, Ghulam Muhammad complainant wanted to marry Mst. Shamim after divorce. In cross-examination, he has admitted that he was not present when Falak Sher had divorced Mst. Shamim. He has further deposed that he had not appeared before the police in defence of the accused. According to him, a case was registered by Imam Bakhsh against Ghulam Muhammad and others but that was cancelled. Muhammad Nawaz (D. W. 2) is another witness of the Nikah between Imam Bakhsh and Mst. Shamim and he had duly signed the Nikah Nama. Previously Mst. Shamim was wife of Falak Sher who had divorced her about three years before. After the Nikah of Mst. Shamim and Imam Bakhsh, she was abducted by Ghulam MAammad complainant and others and a case was registered against them and because of that enmity the present case was registered against them by the complainant. In cross-examination, he has stated that he was not present when Mst. Shamim was divorced by Falak Sher. According to him, he had acted a Vakeel of Mst. Shamim at the time of Nikah.
9. Abdul Karim (D. W. 3) is the stamp vendor. He had brought before the Court the register of stamp vendor for the year 1982 when he used to make sales of stamps at Daulat Gate. According to him, Falak Sher son of Malik Rab Nawaz had purchased the stamp valuing Rs, 15 from him on 28-1-1982 for giving divorce to his wife Mst. Shamim Bibi daughter of Ahmad Bakhsh, caste Bhatti Sultan Ahmad had identified Falak Sher, the purchaser of the stamp before him. The witness had made entry No, 6093 in the register for the sale of the stamp. The thumb impression was obtained by him on the register and on the back of the stamp paper. Exh. DE was his endorsement on the back of stamp paper which bore his signatures, thumb impression of Falak Sher and signatures of Sultan Ahmad. In cross-examination, he has stated that Falak Sher was not personally known to him but Sultan Ahmad was known to him. Falak Sher had told him that he had no identity card with him. He denied the suggestion that the stamp paper was not sold by him on 28-1-192 and ante dated entry had been made by him in the register and that the register had been replaced. Sultan Ahmad (D.
W. 4) is the step-father of Mst. Shamim accused being second husband of her mother. He has deposed that about 21 years before, Falak Sher came to him and told him that he had gone to the stamp vendor for the purchase of stamp paper for divorce of his wife, but the stamp vendor had not given the stamp to him as he required some identification. The witness told Falak Sher that he should bring his brother Ghulam Muhammad but Falak Sher told him that his brother had asked him to take the witness with him. The witness advised Falak Sher not to divorce Mst. Shamim but Falak Sher insisted that he would divorce her and he should accompany him to identify him for the purchase of stamp paper. This witness, therefore, accompanied Falak Sher to purchase the stamp paper from the stamp vendor from Daulat Gate and he identified Falak Sher before the stamp vendor. The endorsement of the stamp vendor Exh. DE bore his signatures as an identifier. Falak Sher had put his thumb impression. The entry in the stamp register was also signed by this witness.
Falak Sher had executed the divorce deed on the same day in his presence. Mst. Shamim was staying at the house of this witness when Falak Sher handed over the divorce deed to her. The divorce deed was written by Akbar, petition-writer. Falak Sher had thumb marked the divorce deed.
Mitha and Sarfraz Khan had acted as marginal witnesses. Subsequently, he learnt that Mst.
Shamim had married Imam Bakhsh accused. In cross-examination, the witness has deposed that Falak Sher was quite sensible person. He was present when Talaq Nama was registered. According to this witness, Imam Bakhsh had registered a case against Ghulam Muhammad and Falak Sher and others. He did not know that Mst. Shamim had taken a stand that she was wife of Falak Sher as he was in jail in those days under section 307, P. P. C. He denied the suggestion that neither Falak Sher had purchased the stamp paper nor he had ever divorced his wife list. Shamim. He did not know if the notice of Talaa was given to the Union Council. He had identified Falak Sher before the petition-writer who was known to the witness.
10. Mitha (D. W. 5) has deposed that about 2 or 24 years before, he was present in Katchery premises where he met Falak Sher who was present with Sultan Khan at the seat of Akbar, petition- writer. Falak Sher executed Talaq-Nama which was written by said Akbar and then at the request of Falak Sher this witness acted as a marginal witness of Talaq-Nama Exh. DF which bears his thumb impression. Falak Sher had put his thumb impression on the Talaq-Nama. In cross-examination, he has stated that the stamp paper was not purchased in his presence. When he reached there, the Talaq-Nama had already been written and he had only thumb marked it. The petition-writer has died. According to him, no notice of divorce was sent to the Union Council.
11. The trial Court also examined Falak Sher as C. W.
1. He has deposed that Mst. Shamim accused was known to him. She was married to him about 24 years before. She resided with him as his wife for about 2/3 years. According to him, she was never divorced by him and he had never executed any Talaq-Nama. About 4/5 months before, accused Imam Bakhsh had enticed away his wife Mst. Shamim. Again said that in fact Mst. Shamim had gone from his house to the house of her father who is her stepfather and it was from the house of his stepfather that Imam Bakhsh accused had abducted her. According to him, she was still his legally-wedded wife. In cross-examination, this witness has admitted that he had never lodged any report for the abduction of his wife. Previously he was married to Mst. Nazeeran but he had divorced her about 3/4 years back as his brother Ghulam Muhammad had directed him to do so.
He had divorced her in writing. According to him, he had never purchased any stamp paper for the execution of any Talaq-Nama to Mst. Shamim and no Talaq-Nama was ever executed by him. He denied the defence suggestion that he had executed a Talaq Deed and got the same attested from Malik Ashiq Hussain, Advocate. It is further denied by him that he had ever got instituted any suit from Mst. Shamim and that any false and bogus case was instituted by him in the name of Mst.
Shamim accused. He, however, admitted that Imam Bakhsh accused had registered a case against him and others on the allegation of abduction of Mst. Shamim. It is further admitted that Mst. Shamim had filed a writ petition against his brother and the Police Officials. He has also denied the suggestion that he had divorced her on 28-1-1982.
12. The trial Court vide impugned judgment convicted and sentenced the present appellants as mentioned above but acquitted co-accused Mst. Sakina and Muhammad Ellahi.
13. We have heard at length the counsel for the parties who have also taken us through the entire evidence available on the record.
14. The charge against the accused persons was under two heads one under section 16 and the other under section 10 of the Ordinance. The trial Court acquitted all the accused persons under section 16 of the Ordinance. However, the present appellants have been found guilty under section 10(2) of the Ordinance. It is vehemently contended by the learned defence counsel that the prosecution has miserably failed to substantiate the charge of Zina against the appellants as none of the prosecution witnesses has deposed that he saw the appellants committing Zina with each other. The prosecution witnesses only support the charge of abduction for which the trial Court has already acquitted the accused persons. The learned State counsel admits this factual position that the prosecution has not produced any such witness who claims to have seen the appellants committing Zina with each other. He, however, strongly relies upon the defence plea taken up by the accused persons that they married each other and were leading life as husband and wife. It is well settled now that the statement of an accused person or a defence plea is to be accepted or rejected in its entirety. It is not denied even by the learned State counsel that if the defence plea is accepted as a whole then the appellants have committed no offence. The learned State counsel wants to take benefit of one part of the statement of the accused only and ignore the rest. This is not permissible under the law. Moreover, a perusal of the statements of the accused persons under section 342, Cr. P. C shows that they have categorically denied the prosecution allegation that they had committed Zina with each other. It is significant to note that even sexual intercourse is not admitted by the present appellants with each other in their statements under section 342, Cr. P. C.
They have only alleged marriage with each other. The term 'Zina' has been defined under section 4 of the Ordinance in the following words:- "4. A man and a woman are said to commit 'Zina' if they wilfully have sexual intercourse without being validly married to each other. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina."
A. Perusal of the above clearly shows that to establish the charge of Zina, it is necessary to show that a man and a woman without being validly married to each other have wilfully committed sexual intercourse. The explanation of this section has further clarified this term `Zina' by saying that penetration is sufficient to constitute sexual intercourse. Thus, before the prosecution could secure the conviction of the present appellants under section 10(2) of the Ordinance, it was necessary to prove that they had committed sexual intercourse with each other without being validly married. It is surprising that even there is no mention of any sexual intercourse either in the statements of the P. Ws. Or in the statements of the accused persons recorded under section 342, Cr. P. C. The onus was upon the D prosecution to establish the charge of Zina against the accused persons by producing some positive. Or direct evidence but it miserably failed to do so. The result is that the ingredients of `Zina' as laid down by the Ordinance have not been fulfilled in the instant case. Neither the prosecution produced any evidence to prove the allegation of Zina nor there is any specific admission by the accused persons in their statements under section 342, Cr. P. C. That they committed Zina or sexual intercourse with each other. The result is that there is no material available on the record to substantiate the charge of Zina under section 10(2) of the Ordinance against the appellants and consequently their conviction and sentences are liable to be quashed.
15. For the foregoing reasons, this appeal is accepted. The conviction and sentences of Mst.
Shamim Akhtar and Imam Bakhsh are set aside and they are acquitted of the charge. They shall be released forthwith if not required in any other case.