' Muhammad Hussain complainant on 3-8-1981 had lodged a report with the police alleging therein that he had married his daughter Mst. Sukhan to Muhammad Arif, P.W. Resident of Fattu Wala about two years earlier. She was living with her husband and performing her matrimonial obligations. About two months prior to the lodging of the report, his son-in-law i.e, Muhammad Arif, P.W. Went to Hasilpur for cultivating his land there. The other, daughter of the complainant namely Mst. Pairan was marreid to the brother of said Muhammad Arif and both the brothers were residing together in the same house. Mst. Pairan, P.W. Told her father Muhammad Hussain that during the night of occurrence Allah Rakkha, Faiz Bakhsh, Wahid Bakhsh and Khuda Bakhsh armed with hatchets and Sotas entered her house and forcibly abducted his daughter Mst. Sukhan accused.
Next morning when he reached the house of his daughter, he was informed about this occurence by his other daughter Mst. Pairan. When he alongwith Allah Ditta, P.W. Was in search of his daughter, at Pul Faiz-Wali, Rab Nawaz, Member, Union Council told him that his daughter Mst.
Sukhan was going with the said accused persons towards Mailsi. He went to Wahid Bakhsh and Fida Hussain accused for the return of his daughter but first they promised to return her but ultimately refused to do so. The cause of this occurrence mentioned by the complainant in the report was that Wahid Bakhsh had fraudulently obtained a sum of Rs,20,000 from him but subsequently litigation started between them and due to this reason his daughter Mst. Sukhan was abducted by the accused persons. It appears that subsequently one Dost Muhammad was also included among the accused persons. Mst. Sukhan was initially treated as prosecution witness being the abductee. It was during the investigation that on the directions of D.S.P. The Investigating Officer Muhammad Ibrahim arrested Mst. Sukhan on 27-12-1981 as an accused person because she was involved in the case. Next day i.e, 28-12-1981 she was medically examined by Lady Doctor Shahnaz Akhtar. The Investigating Officer challaned the following six persons in this case:-
(1) Mst. Sukhan alias Ghulam Sakina, wife of Muhammad Arif.
(2) Dost Muhammad son of Fazal Ahmad.
(3) Wahid Bakhsh son of Fazal Din.
(4) Fida Hussain son of Wahid Bakhsh.
(5) Allah Rakha son of Faiz Bakhsh.
(6) Faiz Bakhsh son of Ellahi Bakhsh.
' These persons were tried by the Additional Sessions Judge, Vehari, who on 4-9-1983 framed charge under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) against all the six accused persons. On 25-9-1983 the statements of four prosecution witnesses were recorded and for the remaining evidence the case was adjourned to 9-10-1983 on which date two more P.Ws. Were examined and for the remaining evidence the case was adjourned to 26-10-1983 when the prosecution evidence was concluded and tne case was adjourned to 14-11-1983 for recording the statements of the accused persons. On 14-11-1983 before recording the statements of the accused persons under section 342, Cr.P.C., the learned Additional Sessions Judge studied the evidence brought on record by the prosecution regarding the charge framed against them under section 10(2) of the Ordinance and came to the conclusion that none of the prosecution witnesses had stated that the accused persons committed Zina under section 10 of the Ordinance. The trial Court, however, found that there was evidence that semen was found in the vagina of Mst. Sukhan accused but that did not necessarily mean that it were the co-accused of Mst. Sukhan who committed Zina with her. The learned trial Judge, therefore, found no substance to put to accused Dost Muhammad, Wahid Bakhsh, Allah Bakhsh, Fida Hussain and Faiz Bakhsh so as to obtain their explanations under section 342, Cr.P.C.
The trial Court, therefore, acquitted them all of the charge. However, about Mst. Sukhan the trial Court found that she was medically examined by Lady Doctor Shahnaz Akhtar (P.W.6) who took two vaginal swa bs of Mst. Sukhan and sent the same to the Chemical Examiner for detection of semen.
The Chemical Examiner found, as per report Exh. P.E. That the swabs were stained with semen and blood. According to the trial Court, she had left the house of her husband Muhammad Arif, P.W. Two months prior to 3-8-1981. She was, therefore, required to explain the presence of semen. The trial Court, therefore, recorded her statement under section 342, Cr.P.C. On that day and the case was adjourned to 29-11-1983 for arguments. The interim order passed by the trial Court on 14-11-1983 is relevant and the same is, therefore, reproduced below:- "Present: Accused on bail with counsel. A.D.A for the State.
' I have studied the evidence brought by the prosecution on the charge settled against the accused and have come to the conclusion placed below.
' The charge against the accused is that they have indulged in Zina as per section 10 of Zina Ordinance. Neither of P.Ws. Who are 10 in number, have alleged that the accused present in Court have committed Zina. There is, however, evidence that semen was found in the vagina of Sukhan but the presence of semen in her vagina does not necessarily bring to the conclusion that it were the co-accused of Sukhan that they committed Zina with her. I, therefore, find no substance to put to Dost Muhammad, Wahid Bux, Fida Hussain, Allah Bux and Faiz Bux so as to obtain their explanations within the meaning of section 342, Cr.P.C. I therefore, acquit them all of the charge.
' Mst. Sukhan was medically examined by P.W. 6 and two vaginal swabs were taken by her and sent to the Chemical Examiner for analysis. The Chemical Examiner found as per report Exh. P.E. That the swa bs were stained with semen. She left the house of her husband Arif P.W. Two months prior to 3- 8-1981. She was, therefore, required to explain the presence of semen. I propose to examine her under section 342, Cr.P.C.
(Sd.)
Addl Sessions Judge, 14-11-1983 Camp at Mailsi.
' Statement of Sukhan as per section 342, Cr.P.C. Has since been recorded. For arguments to come up on 29-11-1983.
(Sd.)
Addl. Sessions Judge, 14-11-1983 Camp at Mailsi.
2. In support of its case the prosecution produced 10 witnesses.Head Constable Ghulam Yasin (P.W.1) on receipt of complaint Exh. P.A./1 from Ghulam Shabbir, A.S.I., recorded formal F.I.R. Exh. P A
3. Muhammad Hussain (P.W.2) is the complainant and father of Mst. Sukhan accused. He has deposed that he married his daughter Mst. Sukhan with Arif P.W. Four years ago and about 26 months back she was present in her house alongwith her sister Mst. Pairan (P.W.7) while her husband Arif had gone to Hasilpur. Allah Rakkha, Faiz Eakhsh, Wahid Bakhsh and Khuda Bakhsh armed with hatchets entered her house and forcibly abducted her as told to him by his other daughter Mst. Pairan P.W. Next morning. He accompanied by Allah Ditta went in search of Mst.
Sukhan and came across Rab Nawaz, Member at canal bridge who told him that the accused and Mst. Sukhan were going towards Mailsi. A panchayat was convened and Wahid Bakhsh accused first promised to return Mst. Sukhan but ultimately refused to do so. According to the complainant, Mst. Sukhan was abducted on account of money suit lodged by him against Wahid Bakhsh in the sum of Rs,20,000. This amount had been taken on loan from him. He lodged the report Exh. P.A./1 before the police after about 1# months of the occurrence. In cross-examination, he has stated that he resided at Jalla Jeem which was at a distance of about four miles from Fattuwala. He came to know about the occurrence next morning when he visited his daugher Mst. Pairan P.W. The occurrence was not reported to him by her while he was at Jalla Jeem. He has further deposed that Mst. Sukhan accused had filed suit for dissolution of marriage against Arif 4/5 days prior to Exh.
P.A./1. The suit was dismissed at Multan. He, however, admitted that Mst. Sukhan had filed another suit at Vehari and obtained ex parte decree but the proceedings were afoot for the cancellation of ex parte decree. The complainant had filed money suit at Mailsi and it was dismissed but was decreed in appeal and at that time the matter was pending before the High Court.
4. Muhammad Arif (P.W.3) is the husband of Mst. Sukhan accused.He has stated that he had gone to Hasilpur for cultivation and in his absence the accused had abducted his wife Mst. Sukhan. In crossexamiantion, it is admitted by him that he came to know of the abduction after 10/15 days and a messenger had informed him at Jalla Jeem and then he returned home. He had applied for cancellation of ex parte decree obtained by Mst. Sukhan.
5. Haji (P.W.4) is the Wajtakkar witness. According to him, at the relevant time when he was returning home from Abdul Hakim en route Multan he saw all the accused at Dokotta and on his querry, Wahid Bakhsh accused told him that a relation of Mst. Sukhan had died and they were going there. The witness informed the police about it.
6. A.S.I. Ghulam Shabbir (P.W.5) on 3-8-1981 was on patrol duty in the city. The complainant Muhammad Hussain met him and made statement Exh. P.A./1 thumb-marked by him. He sent the same to the police station for formal registration of the case. He proceeded to the spot, inspected and drew site plan Exh. P.B. He also examined the P.Ws. And arrested Dost Muhammad and Wahid Bakhsh accused on 9-8-1981. Thereafter the investigation was transferred from him. In cross- examination, it is stated by this witness that it did not come out as a result of his investigation that any of the accused had illicit relations with Mst. Sukhan accused. It is further admitted by him that as per F.I.R. Exh. P.A./1 Mst. Sukhan was an abductee and not an accused.
7. Lady Dr. Shahnaz Akhtar (P.W.6) on 28-12-1981 examined Mst.Ghulam Sakina alias Sukhan accused at the instance of the police and found as under:- "(1) 20 years old married woman having fully developed breast and gentalia and had no injury on her parts of the body.
(2) Vaginal examination was not painful. Hymen showed old laceration. Two fingers could easily be admitted. Two vaginal swa bs were taken and sent to Chemical Examiner through Police. Exh. P.C. Is the correct carbon copy of the medico-legal report."
8. Mst. Pairan Mai (P.W.7) is the real sister of Mst. Sukhan accused and her husband and the husband of Mst. Sukhan are real brothers inter se and they resided together at Chah Fattu Wala.
She claims to be an eye-witness of the abduction of Mst. Sukhan. According to her during the night of occurrence, Wahid Bakhsh, Fida Hussain, Allah Rakkha and Faiz Bakhsh accused entered her house armed with Dangs and hatchets while she and Mst. Sukhan were asleep in the house. The accused abducted away forcibly Mst. Sukhan accused. Next morning she went to the house of her father and narrated the occurrence to him. In cross-examination she has stated that she could not raise noise since one accused stood up besides her and that accused slipped away alongwith other accused. After going away the accused alongwith the abductee, she did not raise alarm nor informed anybody. According to her, she was examined by the police after a month or so and by that time Mst. Sukhan had not been recovered.
9. Allah Bakhsh (P.W.8) claims to have attested the recovery memo. Exh. P.D. Regarding the Nikahnama Exh. P.D./1 which was produced by the complainant before the police.
10. A.S.I. Hafiz Khuda Bakhsh (P.W.9) on 28-12-1981 got Mst. Sukhan accused medically examined at Civil Hospital, Mailsi. He detained her in the judicial lock-up on the orders of the Magistrate. He also formally arrested some other accused persons. In cross-examination, he has stated that S.H.O.
Muhammad Ibrahim had arrested Mst. Sukhan accused but not in his presence. He had escorted her from police lock-up for medical examination. He has admitted that she was confined in the police lock-up from 27-12-1981 and she spent the night at the police station. The witness did not know if any of her relations remained present at the police station during the preceding night.
According to this witness it was not within his knowledge that Mst. Sukhan accused held out at the time of her medical examination that she had been raped at the police station.
11. S.H.O. Muhammad Ibrahim (P.W.10) on the directions of D.S.P. Arrested Mst. Sukhan accused on 27-12-1981. In cross-examination, this witness has stated that none other accused was accompanying Mst. Sukhan and her father Muhammad Hussain P.W. And her husband Arif P.W. Had also not accompanied her.
12. Mst. Sukhan in her statement recorded under section 342, Cr.P.C. Denied the prosecution allegations. The following questions put to her and answers given by her are relevant:- "Q.4. Where are you living now and since when ?
Ans. I am residing with my present husband Khadim Hussain for the last six months after having obtained decree for dissolution of marriage from the Court of Judge Family Court, Vehari.
Q.5. When did you leave the house of Arif P.W. And where did you live thereafter till the alleged marriage with Khadim Hussain ?
Ans. Arif P.W. Turned me out five years ago whereupon I came to live with my father Muhammad Hussain P.W. I lived with my parents for about 31 years and then shifted to my Pir Syed Mahboob Shah who resides at Pehalwan Arain. I stayed with him till my marriage with Khadim Hussain.
Q.7 Is it correct that you had been arrested on 27-12-1981 and medically examined on 28-12-1981 by the A.W.M.O. Civil Hospital, Mailsi ?
Ans. I was produced at the police station by Syed Mahboob Hussain Shah 3-4 days prior to my formal arrest. I was kept at the police station for 3-4 days and then arrested on 27-12-1981. It is however, correct that I was medically examined on 28-12-1981 by the A.W.M.O. During my stay at the Police Station I was subjected to Zina by some unknown person. I brought it to the notice of the police but no action was taken by them. Q.8 Is it correct that the A.W.M.O. Shahnaz Akhtar P.W. Took two swa bs from your vagina for analysis for Chemical Examiner and later found to be stained with semen ?
Ans. It is correct that two vaginal swa bs were taken by the lady doctor but the presence of semen was due to the Zina committed with me at the Police Station.
Q.9 Why this case against you and why the P.Ws. Deposed against you ?
Ans. My parents wanted me to live with Arif which I did not like hence they all conspired together and involved me in a false case. They also held enmity with the co-accused."
' She however, produced no evidence in defence.
13. The trial Court vide impugned judgment dated 19-12-1983 found Mst. Sukhan guilty under section 10(2) of the Ordinance. The trial Court observed as under:- "None of the 10 P.Ws. Produced at the trial testified that Sukhan accused committed Zina with any one but the fact that semen was found in her vagina long after her separation from her husband Arif P.W.3 has to be deeply looked into. The presence of semen no doubt speaks of Zina committed by her."
' According to the trial Court, it was established that Mst. Sukhan accused committed Zina since the presence of semen in her vagina could not be attributed to her husband Arif P.W. Thus on the basis of the report of the Chemical Examiner Exh. P.E. Her vaginal swabs being stained with semen and blood, the learned trial Judge found her guilty under Section 10(2) of the Ordinance and sentenced her to undergo R.I. For five years and whipping numbering 30 stripes and fine of Rs, 1,000 or in default of payment of fine further R.I. For three months. She has challenged her conviction and sentences through the present appeal.
14. I have at length heard the learned counsel for the parties who have also taken me through the entire material available on record.
15. It is vehemently contended by Mr. Muhammad Aslam Chatta, the learned counsel for the appellant that the ingredients of the offence of Zina as defined in section 4 of the Ordinance have not been established against Mst. Sukhan and, therefore, her conviction and sentences are liable to be set aside.
16. Initially the case of the prosecution as revealed in the F.I.R. Was that Mst. Sukhan was abducted by co-accused. However, after the investigation the trial Court did not frame the charge of abduction but framed charge of Zina under section 10 of the Ordinance against all the 6 accused persons including Mst. Sukhan. It is an admitted fact, as observed by the trial Court, that none of the witnesses produced by the prosecution has alleged that Mst. Sukhan committed Zina with any of the co-accused. In other words, there is no direct or positive evidence of Zina available on record. At the close of the prosecution evidence and before recording the statements of the accused persons under section 342, Cr.P.C., the trial Court, therefore, acquitted 5 co-accused on 14-11-1983 but examined only Mst. Sukhan under section 342, Cr.P.C. And ultimately found her guilty under section 10(2) of the Ordinance on the basis of the Chemical Examiner's report regarding her vaginal swa bs being stained with semen and blood. It is in this factual background that the learned defence counsel has contended that the ingredients of the offence of Zina as defined in section 4 of the Ordinance have not been established against Mst. Sukhan appellant, and, therefore, her conviction and sentences are liable to be set aside.
17. Thus the question which arises for consideration is whether in the absene of any direct or positive evidence, a female accused can be convicted under section 10(2) of the Ordinance merely on the basis of the Chemical Examiner's report that her vaginal swabs were found stained with semen and blood.
18. Before discussing the ingredients of section 4 of the Ordinance, let us see the meaning of the word 'Zina' in general sense.
' In{{URDU TEXT}}the word 'Zina' (e.;) inter alia has been explained as udder:- {{URDU TEXT}} ' In {{URDU TEXT}}by Waris Sarhindi, the word 'Zina' is defined as under:- {{URDU TEXT}} ' According to Feroze Sons Urdu English Dictionary, the term 'Zina' um includes both adultery and fornication.
19. The word 'Zina' has been defined in section 4 of the Ordinance which is reproduced below:- "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 shows that before the prosecution can succeed in securing the conviction of an accused person for 'Zina', it has to fulfil the following ingredients of this section:-
(i) There should be a man and a woman.
Thus it presupposes the existence of two human beings and each must belong to the opposite sex.
In other words this offence is not possible by one human being whether male or female or by two or more human beings belonging to the same sex or being sexless.
(ii) Such man and woman are not validly married to each other.
It means there is no valid marriage between the two. Again the expression "valid marriage" will imply the requirement of such marriage as required under the Muhammadan Law. The word 'validly' has also been interpreted by the Appellate Shariat Bench of the Supreme Court in Ghulam Shabbir Shah's case reported in 1983 SC MR 942. That interpretation is constitutionally binding upon this Court and I respectfully adopt the same.
(iii) Such man and woman should have committed sexual intercourse with each other.
' The expression "sexual intercourse" has not been defined in the Ordinance but has been explained in various dictionaries. In old edition of Black's Law Dictionary, "sexual intercourse" means carnal copulation of male and female implying actual penetration of the organs of the latter. In Blakiston's New Gould Medical Dictionary, the word 'copulation' means the sexual union of the male and female to satisfy their carnal desire, and the word 'sexual' means coitus.
(iv) Such man and woman should have committed sexual intercourse "wilfully".
(v) It is not denied that sexual intercourse can also be committed, inter alia, with a woman against her will forcibly or during her sleep or while under the influence of some intoxicant administered to her against her will and in such situation she cannot be punished for Zina. It is only when such sexual intercourse is committed with her consent or will that she can be held guilty for such Zina under the said Section. The word "wilfully" or "wilful" has been used in different statutes and, therefore, has been the subject-matter of interpretation before superior Courts. Lord Russell C.J. In the Queen v. Senior (1899) 1 (QB) 283 defined the word "wilfully" meaning an act which is done deliberately and intentionally, not by accident or inadvertence but so that the mind of the person who does the act goes with it. In Oxford English Dictionary Vol. II, the word "wilfully" has been explained as willingly, readily, submissively, of one's own free will, of one's own accord, voluntarily, according to one's own will, freely, intentionally, deliberately. In Black's Law Dictionary, a wilful act may be described as one done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.
(v) Penetration.
' The most essential ingredient of Zina under section 4 is penetration which is given in the explanation of this section. In simple language, penetration means entering of the male organ (penis) into the vagina. For the offence of Zina, mere insertion or entering of the penis int the vagina is sufficient--However slight an extent. Similarly, ejaculation or emission or seminal discharge is not necessary to constitute the offence of Zina. Similarly, love-making activities, howsoever objectionable morally and socially might be, of such male and female like kissing, embracing or lying on the same cot or even lying on each other will not bring the case within the mischief of Zina unless they indulge in actual penetration.
20. In the instant case, all the above ingredients of section 4 are conspicuously absent as the prosecution has miserably failed to produced any evidence to substantiate the same. A mere presence of semen on the vaginal swabs of Mst. Sukhan appellant would not bring her case within the definition of the offence of Zina as contemplated by section 4 of the Ordinance unless it is further proved that the said semen was the result of sexual intercourse committed by the appellant with her 11 consent with a man who was not legally married to her. Mere medical examination of the appellant and the positive report of the Chemical Examiner regarding her vaginal swabs would not be sufficient to prove against her the offence of Zina under section 4 of the Ordinance.
21. Apart from the above legal infirmities, the prosecution case is also full of doubts. The occurrence took place two months prior to the lodging of F.I.R. On 3-8-1981. This delay has not been satisfactorily explained by the complainant. According to the F.I.R., it was the case of abduction of Mst. Sukhan by four male accused persons. In the F.I.R. Ony names of four accused persons were mentioned. However, during the investigation another accused namely Dost Muhammad was added. Mst. Sukhan was not treated as an accused person in the I beginning of the investigation.
According to Muhammad Ibrahim, S.H.O. (P.W.10), he arrested Mst. Sukhan on 27-12-1981 as an accused person under the directions of D.S.P. There is no material available on the record to justify her arrest on that day as an accused person because she was medically examined by Lady Doctor Shahnaz Akhtar (P.W.6) on next day i.e, 28-12-1981 when her two vaginal swabs were taken and sent to the Chemical Examiner for detection of semen. The report of the Chemical Examiner Exh.P.E. Is dated 21-1-1982 which shows that the vaginal swabs were found stained with semen and blood.
This it is not clear on what evidence or material the present appellant was treated as an accused person on 27-12-1981. Although the allegation against the male accused persons in the F.I.R. Was that they had abducted Mst. Sukhan, yet the trial Court did not frame any charge for abduction but the charge framed on 4-9-1983 was only for Zina under section 10 of the Ordinance. Even for the charge of Zina, all the 5 male accused were acquitted by the trial Court vide interim order dated 14-11-1983 before recording their statements under section 342, Cr.P.C. It was only Mst. Sukhan appellant who was examined under section 342, Cr.P.C. By the trial Court. In that statement, she has clearly alleged that she was produced at the police station by Syed Mahboob All Shah 3/4 days prior to her formal arrest and was kept at the police station for 3/4 days and then arrested on 27- 12-1981. It is further alleged by her that during her stay at the police station, she was subjected to Zina by some unknown person and she brought this fact to the notice of the police but no action was taken by them. According to her, the presence of semen on her vaginal swabs was due to the Zina committed with her at the police station. Thus it is clear that an element of doubt existed at every stage of the prosecution case and the appellant can legitimately claim the benefit of such doubt because it is well-settled principle of Islamic Jurisprudence that the benefit of doubt must go to the accused.
22. For the foregoing reasons, this appeal is accepted, the conviction and sentences of Mst. Sukhan are set aside and she is acquitted of the charge. She is already on bail and her bail bond stands discharged.