' JUSTICE AFTAB HUSSAIN (CHAIRMAN).--Muhammad Ishaque and his sister's husband Muhammad Nazir have filed appeal against their conviction and sentences under sections 10, 16 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The Additional Sessions Judge, Savgodha who tried this case sentenced them on 20th of April, 1981 under section 16 to 4 years' R.I.
Each, under section 11, to 4 years' R.I. Each and under section 10 to 8 years' each.
2. According to the First Information Report and the evidence on record, a month before the 29th of June, 1980 Muhammad Ishaque and Muhammad Nazir appellants alongwith three other persons namely Mst. Safia, Azmat Ali, and Abdul Majid who have been acquitted by the learned Additional Sessions Judge, kidnapped Mst. Safia, P.W. 6 who is said to be less than 16 on the date of kidnapping. The First Information Report of this incident was given on the 29th of June, 1981. It however, appears from a petition filed under section 491, Code of Criminal Procedure by Nazir appellant in the High Court on the 28th of June, 1980 that Ishaque appellant and Mst. Safia both were kept in the Police Station since the 25th of June, 1980. The High Court sent a bailiff for production of these two detenus in the High Court provided no case had been registerd against them. It appears that the First Information Report was recorded either on receipt of the news about the commissioning of bailiff or after his arrival.
3. Despite this according to the Police version Mst. Safia and Muhammad Ishaque are said to have been recovered on the 29th of June, 1980 but the evidence of this recovery need not be referred to in the face of the circumstances stated above which proved that before the First Information Report was recorded Muhammad Ishaque and Mst. Safia both were already in the Police Station.
4. The prosecution case hinges on the evidence of Mst. Safia, P.W.6 and Muhammad Hussain P.W. 7, a Wajtakkar witness. P.W.5, Ghulam Ahmad is the father of Mst. Safia who had given the First Information Report but he is neither a witness of kidnapping nor a Zina. The evidence of P.M, who had merely seen the accused person going alongwith Mst. Safia is also not very material since it does not prove either of the offence, Mst. Safia, therefore, is the only witness whose evidence has to be scrutinized.
5. Mst. Safia stated that she had been induced to go by Mst. Safia, the acquitted accused. Mst. Safia the witness went with Mst. Safia accused. Later on she was taken by Ishaque and Nazir appellants to Sheikhupura and then to Lahore. Soon after this kidnapping Muhammad Ishaque committed Zina-bil-Jabr with her. Muhammad Ishaque also got her signature on various documents. In the absence of Muhammad Ishaque, Muhammad Nazir appellant also committed Zina with her and he too secured her signature on certain documents. In cross-examination, she was confronted with a writ petition which she had filed in the High Court on the 22nd of June, 1980 i.e, a weak before the registration of the case in which she complained against the Station House Officer, Bhalwal, District Sargodha and one Younus that although she had married with Muhammad Ishaque with her free consent, these persons were after getting her and her husband arrested. She prayed that the respondent may be ordered not to interfere with her or husband's liberty. Mst. Safia first denied to have filed this writ petition but subsequently she at least admitted that she had gone to the High Court though she added that she had complained there that she was an abducted woman. She was also confronted with her statement before the Police where she stated that a Molvi has come there to solemnize her Nikah ceremony and she also signed a Nikahnama.
6. The case of the appellants is that Mst. Safia Bibi was married to Muhammad Ishaque on 20th of June, 1980 and they produced a Nikahnama in support of this. They also produced an affidavit made by Mst. Safia before a Magistrate at Faisalabad. A number of letters written by Mst. Safia have also been placed on record. Similarly the copy of writ petition filed by Mst. Safia and copy of the petition under section 491 has been relied' upon by the appellants. In view of the admission of Mst. Safia about her being a signatory to the Nikahnama and the circumstances of the case that she remained quiet from the time of her alleged abduction to the date of her arrest. It is impossible to believe that this was a case of abduction under section 11 or even a case under section 16 of the Ordinance or of commission of Zina. It is clear from her own evidence that before she went along with Muhammad Ishaque appellant, Muhammad Ishaque had been inducing her to marry him. It is very clear from her evidence that she left her house of her own accord and married Muhammad Ishaque.
7. The sole question to determine is whether she was a minor on the date of marriage and if so what was the effect of her minority on the marriage after she attained puberty.
8. Mst. Safia was examined medically twice but it is unnecessary to refer to her examination conducted by the Lady Doctor at the instance of Muhammad Ishaque. However, the fact remains that Mst. Jamila P.W.3, who examined her found her to -be 16/17 years old. From the contents of her affidavit as well as petition, it appears that she had been claiming herself to be more than 16 years of age. The prosecution however, produced Mole Bakhsh, Secretary Union Council Sala 'police Station Bhalwal, District Sargodha to prove her birth entry Exh. P.C. The witness however, had to admit in cross-examination that pages 39 to 50 of the register where various entries of dates of birth were made were defaced due to rain water. He also admitted that these pages do not bear the signatures of any officers or Attesting Authority. He further admitted that the pages of the register were loose.
9. On the other hand, the defence produced 3 witnesses to contradict the evidence of P.W.4. They are D.W. 1, D.W. 2 and D.W.
3. D.W.1, Muhammad Saeed, Registration Clerk, Registration Office, Sargodha stated on the basis of forms submitted by Ghulam Muhammad father of Mst. Safia that she was born in 1963.
Muhammad Ashraf Supervisor Food, Office of Assistant Food Controller, Bhalwal, District Sargodha produced the form for issuance of Ration Card filed by Ghulam Muhammad on the 29th of December, 1976, in which he gave the age of Mst. Safia to be about 15 years. D.W. 5, Ghulam Rasool Statistical Assistant, Office of the Deputy Director Health Sargodha Region Sargodha proved the Goshwara of Union Council No, 56 of Union Council Salem. This schedule was sent to his office by the Secretary Union Council Salam about the entries made within 15 days after receipt of this schedule. According to the entry No, 98 in the said Goshwara sent by the Secretary of the said Union Council Muhammad Yousaf son of Muhammad Aslam son of Nizam-ud-Din, was born on 5th of August, 1965. This schedule has been produced to prove the forgery in the Register which has been produced by P.W.4.
10. From this documentary evidence produced in defence as well as the medical evidence it is satisfactorily established that Mst. Safia was more than 16 years of age on the date of her alleged abduction. This cannot, therefore, be a case of kidnapping since kidnapping requires taking way of a girl upto 16 years of age from her legal guardian. Here Mst. Safia was more than 16 years. The next argument of Sardar Muhammad Ishaque, the learned counsel for the complainant who appeared in the connected revision petition about invalidity of the marriage of Mst. Safia on ground of its having been performed during minority is not mentioned in these circumstances.
11. The upshot of this discussion is that the appellants have committed no offence. Their appeal is accepted and they are acquitted. They shall be released forthwith if not required in any other case.
The connected Revision Petition is not competent but it is treated as ani appeal and is dismissed.
12. Before parting with this case, we would like to observe that the learned Additional Sessions Judge has convicted the appellants both under sections 11 and 16, though the ingredients of them do not overlap. He could either convict them under section 16 or 11. We may point out yet another mistake of the learned Additional Sessions Judge that he has sentenced the appellant to 4 years'
R.I. Only under section 11 although the sentence under that section is of life imprisonment which could not have been reduced. The copy of this order shall be sent to Mian Muhammad Nawaz Naiko-Kara, Additional Sessions Judge, Sargodha to enable him to note these errors.