Abdur Rehman Khan Kaif, J -This appeal against conviction by Muhammad Y r son of Ghulam, aged 40 years, resident of Chak No 427/ GB in District Fauala'ad is directed against the judgment, dated 30 9-1986 by the learned Additional Sessions Judge, Faisalabad whereby the appellant was convicted under Section 16 of the Offence of zina (Enforcement of Hudood Ordinance, 1979 (hereinafter referred to as the said Ordinance) and was sentenced to undergo seven years R.I.
Whipping numbering ten stripes and a fine of Rs. 5 000/-. In default of payment of fine, he was to undergo further R I for one year. He was, however, acquitted of the charge under Section 10 (2) of the said Ordinance. By the same impugned judgment Mst. Fatima daughter of Ghulam and sister of the appellant was acquitted of the charge under Section 16 of the said Ordinance, Similarly, Mst.
Manzooran daughter of Allah Ditta a co-accused who wag tried alongwith the appellant under Section 10 (2) of the said Ordinance was also acquitted.
2. The facts of the case briefly stated are that on the report of one Mala son of Haji Samand, paternal uncle of Mst. Manzooran, a case was registered in Police Station Tandlianwala vide FIR No. 259, on 29-7-19#3 wherein it was stated that Muhammad Yar, appellant had developed illicit relations with his niece. Mst. Manzooran According to him, on 26-7-1983 the complainant. Mst Khaulan (P W 2) mother of Mst. Manzooran and Mst. Manzooran (acquitted accused) were present in the court-yard of their house when Mst Fatima (acquitted accused) came there and asked Mst.
Manzooran to accompany her to answer the call of nature. They both went out-side and when Mst.
Manzooran did not tarn up for about 2 hours, the complainant went out in their search. Ho met Khuda Bakhsh son of Noora (P W 3) and Rajab A.I son of Saleh Muhammad (P W 4) at railway station Chak Tooran who informed him that they had seen the appellant and Mst. Manzooran boarding a train which was proceeding towards Tandlianwala. The complainant remained in search of Mst. Manzooran for two days and when disappointed ho proceeded towards the police station for lodging a report but on his way to the police station he met Muhammad Sher, A S I on bridge of Chak No. 421/GB to whom the report wis made.
3. The complaint (Ex. PA) was sent to the police station for registration of the case where Lai Hussain, A S I (P W 7) recorded the formal FIR (Ex. PA/1). Muhammad Sher, ASI (P W 8) proceeded towards the spot, recorded the statements of the P Ws. And on 16-8-1983 he arrested Muhammad Yar and Mst. Manzooran, accused. On 20-8-1983 the investigating Officer mentioned above also formally arrested Mst. Fatima who was on bail.
4. The prosecution examined as many as 8 witnesses in this case but for the disposal of this appeal, the relevant evidence is that of Mala (PW.1), Mst. Khaulan (P W 2), Khuda fiakhsh (P W 3) and Rajab A.I (P W 4).
5. Mala, complainant (P W 1) has narrated almost the same version as given in the FIR Mst. Khaulan (P W 2) has stated that Muhammad Yar, appellant was on visiting terms to their house and in that process, he developed illicit relations with her daughter Mst. Manzooran. Mala (P W 1) who is younger brother of her husband stopped Muhammad Yar, appellant from visiting their house.
According to her on the day of occurrence, Mst. Fatima, accused came to their house and asked Mst. Manzooran to accompany her tor answering the call of nature. Mst. Manzooran went out with Mst Fatima, accused but did not return after considerable time with the result that Mala (complainant) bad to go out in search of Mst. Manzooran.
6. Khuda Bakhsh and Rajab A.I have stated that they had seen the appellant and Mst, Manzooran, accused boarding a train which was going towards Tandlianwala and had informed the complainant of that fact.
7. Muhammad Yar, accused when examined under Section 342 Cr. P C denied the allegations and stated that he had been falsely implicated in this case. He declined to make a statement oh oath in disproof of the allegations under Section 340 (2) Cr. P C and also failed to produce evidence in his defence.
8. We have heard the learned counsel for the parties and have also gone through the evidence with their assistance.
9. In the instant case as already stated, Muhammad Yar, appellant and his sister, Mst. Fatima, were charged under Section lo f the said Ordinance on the allegations that on 6-7-1983 they enticed away Mst. Manzooran, their co-accused from her house in Chak No. 427/GB with the intention that she may hive illicit intercourse with Muhammad Yar, appellant. Similarly, the appellant and Mst.
Manzooran were charged under Section 10(2) of the said Ordinance on the allegations that they had been committing zina with each other will fully being not validly married with each other. It transpires from the impugned judgment that both Mst. Fatima and Mst. Manzooran were acquitted of. The said charges and similarly, Muhammad Yar, appellant was also acquitted of charge under Section 10(2) of the said Ordinance but he was convicts on the same evidence for offence under Section 16 of the said Ordinance and was sentenced in the manner stated above.
10. According to the prosecution version it was Mst. Fatima who took away Mst. Manzooran from her house but since according to Khuda Bakhsh and Rajab A.I, P Ws., the appellant and Mst, Manzooran wera seen by them at the railway station boarding a train which was bound for Tandlianwala, the appellant was connected in that manner with the allegations of enticement, It, therefore, follows that the learned trial court has based his findings mainly on the evidence furnished by the above two witnesses because the evidence of the other two witnesses, namely, Mala (P W 1) and Mst Khaulan (P W 2) has teen disbelieved regarding the role attributed to Mst. Fatima, the acquitted accused, in taking away Mst, Manzooran. It is also in the statement of Muhammad Sher, A S I (P W 8) that according to his enquiry Mst. Manzooran had eloped with Muhammad Yar, accused of her own free will.
11. In his cross-examination, Khuda Bakhsh (P W 3) has admitted that Mst. Manzooran, accused was married to his younger brother, Nawaz but strangely enough he did not take any notice of the matter when he saw the appellant and Mst Marzooran hoarding a train. The evidence of these two witnesses on the whole is not confidence inspiring and it will not be safe to base conviction under the mentioned provisions of law on their testimony but even if these statements are considered on its face value, it would hardly indicate enticement of Mst Manzooran by the appellant because their evidence showed only this much that both of them were seen boarding the train which was bound for Tandlianwala, Although the version given by these two witnesses has nowhere been substantiated through any other cogent piece of evidence yet even if the version given by them is accepted the mere boarding of the train by the two accused would not amount to taking away or enticing away of Mst. Manzooran by the appellant within the meaning of Section 16 of the said Ordinance. Beside the above Mst. Manzooran being shown throughout as a consenting party, no offence under Section 16 of the said Ordinance could be made out against the appellant.
12. The delay in lodging the F I R in the instant case also goes a long way to show that the story narrated in the F I R is the out-come of an after thought showing that the report was lodged after due deliberations and consultations.
13. In view of the above discussion, we are of the well considered view that the evidence in this case in support of the allegations of enticement is neither confidence inspiring nor sufficient to connect the appellant with the crime. The prosecution case is replete with grave doubts and suspicions against the appellant and the benefit thereof must go to him.
14. Accordingly, we accept the appeal, set aside the conviction and sentences of the appellant and acquit him of the charge. He shall be set at liberty forthwith provided he is not required in any other case.