' ABDUR REHMAN KHAN KAIF, J.--Muhammad Farooq alias Majad s/o Abdul Majid was tried alongwith Mst. Noor. Ilahi d/o Rahim Bukhsh and Allah Rakha s/o Sardar Muhammad under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, by the learned Additional Sessions Judge Vehari. Muhammad Farooq was charged for enticing away Mst. Noor Ilahi while both Muhammad Farooq and Noor Ilahi accused were charged for the commission of Zina under section 10(2) of the Ordinance while Allah Rakha accused was charged for having abetted the, commission of offence of enticement under section 16 of the Ordinance read with section 109 of the Pakistan Penal Code. Vide his judgment dated 9-4-1986 the learned trial Court acquitted both Mst. Noor Ilahi and Allah Rakha accused but found Muhammad Farooq, appellant guilty of an offence under section 16 ibid and was accordingly 'convicted thereunder. On conviction under section 16 ibid Muhammad Farooq appellant was sentenced to 3 years' R.I. And whipping numbering 10 stripes.
2. Feeling aggrieved by the impugned judgment the convict has preferred Criminal Appeal No,114/I of 1986 wherein he has challenged his conviction under the mentioned provision. Similarly a 'Criminal Revision No,31/I of 1986 was filed by Abdul Karim, complainant against the mentioned judgment wherein a prayer was made for setting aside the order of acquittal of Mst. Noor Ilahi and Allah Rakha accused and for the enhancement of the sentence awarded to Muhammad Farooq, appellant. We propose to dispose of both the matters by this judgment.
3. The case was registered on the statement of Abdul Karim s/o Peer Bukhsh husband of Mst. Noor Ilahi, accused. The facts of the case briefly stated in the F.I.R. Are that the complainant was married to Mst. Noor Ilahi in the year 1971. About 2(1/2) years prior to the date of occurrence the complainant went to Saudi Arabia where he was informed about 6/7 months before the occurrence that his wife had developed illicit relations with the appellant. He returned to his village from Saudi Arabia on 17- 5-1984 and found his wife Mst. Noor Ilahi missing from his house. He searched for his wife and was informed by Haji Muhammad Yar and Rahim Bukhsh, P.Ws. That both the appellant and Mst. Noor Ilahi were seen by them boarding a Bus. In his report the complainant alleges that his wife has eloped with the appellant for the purpose of commission of Zina and while leaving the house she also took away certain ornaments and clothes with her.
4. The prosecution examined 10 witnesses in all in support of its version. Out of the mentioned witnesses produced Muhammad Afsar Khan, H.C. Proved the formal F.I.R. Drawn on the basis of Exh.P.A.Hile Ghulam Rasool, S.I. P.W.2 arrested Mst. Noor Ilahi on 7-10-1.984 and Farooq, appellant on 15-8-1984. Muhammad Shafi P.W.3 has given evidence to the effect that both the appellant Muhammad Farooq and Mst. Noor Ilahi stayed together at the house of one Rahim Bukhsh. Dr. Shamshad Hussain, P.W.4 has given evidence to the effect that the appellant was capable of performing sexual intercourse while Abdul Karim complainant has narrated the same facts as given in the F.I.R. However, he tried to improve his statement and has stated that his minor daughter was also taken away by his wife Mst. Noor Ilahi and that she was recovered from Mauza Baitgormani, District Muzaffargarh, at the instance of his wife. Muhammad Shafi has deposed that the appellant and Mst. Noor Ilahi stayed for 3 months in the house of Rahim Bukhsh while Muhammad Yar P.W.8 had seen both Mst. Noor Ilahi and Muhammad Farooq, appellant, boarding a Bus. Evidence about the commission of Zina was given by Ghulam Qadir P.W.9 and Zulfiqar Ali P.W.10. Ghulam Qadir has stated that he had found the appellant and Mst. Noor Ilahi committing Zina with each other, with his own eyes while Zulfiqar Ali P.W.10 has deposed that he saw through a hole in the door of the room, the appellant and Mst. Noor Ilahi committing Zina with each other.
5. The appellant when examined under section 342, Cr.P.C. Denied the allegation in toto and deposed that he had been charged on account of enmity.
6. We have heard the learned counsel for the parties and have also perused the entire material available on the record.
7. The learned trial Court has disbelieved the statements of Ghulam Qadir and Zulfiqar Ali P.Ws. In respect of the commission of Zina for good and sound reasons and acquitted all the accused under the said charge. It was also rightly held that in the absence of medical evidence and other corroborative evidence the commission of Zina could not be established.
8. During the course of arguments the learned counsel for the petitioner in the connected criminal revision petition also did not press his prayer so far it related to the acquittal of the accused from the charge of commission of Zina but prayed that the charge under section 16 of the Ordinance having been clearly established against the appellant -the sentence awarded being nominal may be enhanced.
9. In the circumstances, we have now to see whether the charge under section 16 of the Ordinance against Muhammad Farooq, appellant, has been established beyond any reasonable doubt and if so whether the sentence awarded by the learned trial Court needed modification.
10. At the very outset it can be stated that there is absolutely no evidence on record regarding initial disappearance of Mst. Noor Ilahi from the house of her husband. It is not clear whether she was enticed or taken away from her house by the appellant or she had left the house of her own accord. 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 or taking away and as such the question of concealment and detaining of Mst. Noor Ilahi by the appellant does not arise. The complainant himself, in the F.I.R has stated that while leaving the house, she took away certain ornaments and clothes clearly indicating that she had left the house of her own accord and there was no occasion of her enticement by any person. The learned trial Court has clearly held in the impugned judgment that there was no evidence as to how Mst. Noor Ilahi left the house of her husband but relying on the statements of P.W.3 and P.W.7 he came to the conclusion that Mst. Noor Ilahi had stayed with the appellant in the house of one Rahim Bukhsh for a fairly long time. This Rahim Bukhsh was neither cited as a witness nor examined in the case to provide corroboration to the mentioned allegations. It is also a fact that Mst. Noor Ilahi was arrested outside the premises of the Court of Additional Sessions Judge, Vehari when her application for bail before arrest was rejected and not from the house of Rahim Bukhsh or any other place. The learned trial Court has disbelieved all the P.Ws. Excepting P.W.3 and P.W.7 who were mentioned as recovery witnesses of Mst. Shamim the daughter of the complainant and Mst. Noor Ilahi from Bait Gormani but has forgotten that this story was introduced subsequently and was apparently the result of an afterthought in order to create evidence against the appellant and Mst. Noor Ilahi about their stay together in that house. Even otherwise the evidence of these witnesses is not confidence inspiring to prove the charge under section 16 of the Ordinance against the appellant. Furthermore, when the learned trial Court held that Mst. Noor Ilahi left the house of her husband of her own accord then there was no occasion for it to convict the, appellant under section 16 of the Ordinance.
11. The learned counsel for the State appearing in this case has also frankly conceded this position and stated that the evidence produced in this connection is not free from doubt.
12. For the reasons stated above, we find that there is no evidence worth consideration which may bring home the charge under section 16 of the Ordinance against the appellant. We are, therefore, of the view that no offence under the mentioned provision of the law is proved against the appellant. Allowing him the benefit of doubt we accept the Criminal Appeal No,114/I of 1986, set aside the conviction of the appellant and acquit him of the charge.
13. The Criminal Revision Petition No,31/I of 1986 filed by Abdul Karim, complainant, ipso facto fails and is accordingly dismissed.