' ABDUR REHMAN KHAN KAIF, J.-- Mazhar Hussain son of Ghulam Haider, aged about 32 years, resident of 746/G.B. Within the jurisdiction of P.S. Aroti of District Toba Tek Singh, was tried by the learned Sessions Judge, Toba Tek Singh, in a case registered vide F.I.R. No, 105, dated 23-7-1987 of P.S. Saddar, Toba Tek Singh, under sections 16 and 10 of the Offence of. Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) on the allegations that on 5-7-1987 he enticed away a married woman, Mst. Kalsoom Akhtar alias Rani and subsequently subjected her to zina.
2. Vide his judgment dated 6-8-1988 the learned trial Judge found the accused guilty of both the offences and convicted him thereunder. On conviction under section 16 of the said Ordinance he was sentenced to four years' R.I., whipping numbering five stripes and also to a fine of rupees two thousand or in default to suffer further S.I, for two months. Similarly, under section 10(2) of the said Ordinance he was sentenced to seven years' R.I., whipping numbering five stripes and also to a fine of rupees two thousand or in default to suffer further S.1., for a period of two months. The substantive sentences awarded were ordered to run concurrently.
3. Feeling aggrieved, Mazhar Hussain, convict, has preferred the present appeal against the aforesaid convictions and sentences and has challenged the impugned judgment on the grounds mentioned therein. Since the sentence of whipping under section 10(2) of the said Ordinance was not in accordance with the mandatory provisions of the section, the appellant was issued a notice to show cause why the sentence of whipping be not enhanced according to the mandatory provisions of law under which he was convicted.
4. The facts of the case briefly stated are that Mst. Kalsoom Akhtar alias Rani (P.W. 7) is the wife of one Muhammad lqbal, complainant, who is serving as Lance Naik in Pakistan Army. As a result of their wedlock they had three children, two daughters and one son. In July, 1987 while the complainant, Muhammad Iqbal, was serving at Quetta he received a message from his brother, Muhammad Irshad, that his wife Mst. Kalsoom Akhtar, who had developed illicit relations with the appellant during his absence, was missing from his house. The complainant arrived and made efforts to trace out his wife, but he was unable to trace her and consequently lodged a report at P.S. Saddar, Toba Tek Singh, vide F.I.R. (Exh.P.A.). It was stated in the mentioned report that Nawab Din (P.W. 5) and Nazir Ahmad (P.W. 6) had informed his brother, Muhammad Irshad, having seen Mst.
Kalsoom Akhtar and the appellant together at a bus stand of Seowal Chak No,321 J.B. It was further stated that while leaving the house she had taken away some jewellery and cash amount.
5. On the report so lodged, Shafique-ur-Rehman, S.I./S.H.O. (P.W.9) took up the investigation. He inspected the spot and prepared the site plan (Exh.PG). He examined the witnesses and found Mst.
Kalsoom Akhtar on 31-8-1987 who was sent for her medical examination. On 10-9-1987 he arrested the appellant and was sent for his medical examination to determine his potency and after the usual investigation a complete challan was submitted for trial against the accused.
6. At the trial the prosecution examined as many as nine witnesses in support of its version.
' Dr. Shaheena Mubarak (P.W.1) medically examined Mst. Kalsoom Akhtar alias Rani on 31-8-1987 but as a result of her general examination no mark of injury was found on any part of her body. Her hymen was found totally torn on all sides with old and healed tears and her vagina admitted two fingers easily. No fresh laceration of vagina was detected. The lady doctor took two vaginal swabs for the detection of semen by the chemical examiner. The lady doctor opined that Mst. Kalsoom Akhtar was habitual to sexual intercourse and subsequently on the basis of the report of the chemical examiner (Exh.P.C.) she expressed the opinion that Mst. Kalsoom Akhtar was not subjected to any recent intercourse.
' Dr. Shafiq Ahmad Khan (P.W. 2) medically examined the appellant on 10-9-1987 and found him fit to perform sexual intercourse while Abdur Razzaq, F.C. (P.W.3) delivered the sealed parcels of swa bs and a sealed envelope in the office of Chemical Examiner, Lahore, on 9-9-1987. Muhammad Iqbal (P.W.4) is the complainant in this case. In his statement during the trial, he has reiterated almost the same version as given in the F.I.R. While Nawab Din son of Sultan (P.W.5) and Nazir Ahmad son of Ghulam Ali (P.W.6) arc the Wajtakar witnesses. According to them, Mst. Kalsoom Akhtar and the appellant were seen together on the day of occurrence.
' Mst. Kalsoom Akhtar (P.W.7) has deposed that on the day of occurrence at about 8-30 p.m. She went out in the fields to ease herself and while she was there the appellant alongwith Mst. Saffia and Abbas encircled her. The appellant threatened her with a pistol and Abbas put the blade of his knife on the back of her chest. She stated that she was forced to smell a piece of cloth which made her unconscious and when she regained her senses she found herself at Shorkot. She maintained that she was kept for one or one and a half months by the accused and subsequently the accused slipped away and she then returned to her house. According to her, when she reached Railway Station Toba Tek Singh, a Thanedar met her who took her to the police station and was subsequently medically examined. Khalid Rasool, H.C. (P.W.8) recorded the F.I.R. (Exh.P.F.) and kept the sealed parcels in malkhana in safe custody which were subsequently delivered on 9-9-1987 to Abdur Razzaq, F.C., for its delivery in the office of Chemical Examiner, Lahore. Shafique-ur-Rehman, S.I. (P.W.9) as already stated had investigated the case.
7. When examined under section 342, Cr.P.C., the accused denied the allegations and stated that he was falsely involved in the case. In support of his plea, he has furnished the following explanations:- "Before this occurrence I had a quarrel with Iqbal complainant and Irshad. I gave Rs,15,000 cash and one ox to Irshad and lqbal P.Ws. About one year passed after it. Then I wrote a letter to Iqbal P.W. At his Quetta address. He informed me that he shall come home and pay back my money.
Then I went to the complainant to his Chak. A man was with me. Instead of paying hack my money the complainant attacked me and beat me. Then I filed a civil suit for repayment of loan against Iqbal P.W. And others. Thereafter this case was got registered against me and I was arrested."
' The accused had, however, declined to make a statement on oath as required under section 340(2), Cr.P.C., in rebuttal of the prosecution evidence and has further failed to produce any evidence in his defence.
8. We have heard the learned counsel for the parties and have gone through the material available on the record with their assistance.
9. In the instant case the accused has been convicted under section 16 of the said Ordinance for taking and enticing away of Mst. Kalsoom Akhtar, wife of the complainant, with intent that she may have illicit intercourse and was also convicted under section 10(2) of the said Ordinance for having committed Zina liable to Tazir with her. So far the first charge is concerned there is evidence comprising of the statement of Mst. Kalsoom Akhtar (P.W.7) and the version given by Nawab Din son of Sultan (P.W.5) and Nazir Ahmad son of Ghulam Ali (P.W.6). Both the above-mentioned Wajtakar witnesses had completely contradicted each other in their statements whereas in her statement Mst. KaIsoom Akhtar (P.W.7) has narrated altogether a different story. Contrary to the version given by Nawab Din and Nazir Ahmed, PWs, she has tried to involve two other persons, namely, Mst. Saffia and Abbas in the incident. Her statement is also in conflict with the above- mentioned two witnesses showing that she was forced by the three persons to accompany them.
The above statement is also in clear conflict with the version given in the F.I.R. Where there are allegations about the development of illicit relations of the appellant with Mst. Kalsoom Akhtar. It was also stated in the F.I.R. That she took some ornaments etc., also with her while leaving the house, indicating her consent and rather elopement. The version given by the two Wajtakar witnesses, namely, Nawab Din and Nazir Ahmad, is also neither confidence inspiring nor reliable being contradictory and discrepant to the maximum extent. Nawab Din (P.W.5) has stated that Mst.
Kalsoom Akhtar was wearing Burqa and her Burqa was black in colour while Nazir Ahmed (P.W.6) has deposed that Mst. Kalsoom Akhtar was Chadder-clad and that Chaddar was white in colour.
The evidence of both these witnesses being false and concocted on the very face of it was wrongly accepted and relied upon by the learned trial Court.
10. For the reasons stated above and matters to be discussed further in this judgment, we are of the well considered view that the allegations of taking or enticing away of Mst. Kalsoom Akhtar by the appellant have nowhere been proved.
11. Reverting to the next charge under section 10(2) of the said Ordinance, it is an admitted fact that Mst. Kalsoom Akhtar was a married woman and mother of three children. The medical evidence is, therefore, of no help to establish Zina in the absence of proof of recent Zina between her and the appellant. The record reveals that the two vaginal swabs taken and sent to the chemical examiner were not found stained with semen and blood as per report by the chemical examiner (Exh.P.C.).
Even if the report had been positive it would have been of no substantial help for bringing the charge home to the accused for the reason that there is absolutely no evidence on the record to prove that Mst. Kalsoom Akhtar was recovered from the direct custody of the appellant or they were arrested together. In this connection reference is to be made to the statement of Shafiqueur- Rehman (P.W.9). Mst. Kalsoom Akhtar (P.W.7) has also stated that she returned to her house all alone and met the Thanedar at railway station, Toba Tck Singh. In his statement Shafique-ur- Rehman, P.W. Has clearly admitted that on 31-8-1987 he found Mst. Kalsoom Akhtar and that he arrested the appellant on 10-9-1987. This fact has been further admitted by him in his cross- examination that the accused was arrested at about 3-00 p.m., on 10-9-1987 who was sent for his medical examination on the same day. He has further stated that he found Mst. Kalsoom Akhtar, P.W. At railway station, Toba Tek Singh, on the above-mentioned date. It is thus evident that neither the report of the chemical examiner concerning swabs taken is positive nor there is any evidence of the recovery of Mst. Kalsoom Akhtar from the direct custody of the appellant or their presence together. From the copy of the plaint in a suit for dissolution of marriage in the Family Court, Vehari (Exh.D.B.) placed on the record it is further evident that Mst. Kalsoom Akhtar had filed a suit for dissolution of marriage in the above-mentioned Court on 1-7-1987. The above date is further in clear conflict with the date of occurrence as given in the F.I.R.
12. In this case the occurrence, according to the F.I.R. Took place on 5-7-1987 whereas the report was lodged on 23-7-1987. No convincing and plausible explanation has been furnished by the complainant for this inordinate delay. There arc also allegations of strained relations between the appellant and the complainant which have been conceded to some extent by Mst. Kalsoom Akhtar, (P.W.7) in her cross-examination.
13. All the above factors when taken together it becomes clear that it was a case of no evidence at all and the learned trial Court having misread the evidence has failed to appreciate the facts of the case and had thus based the conviction on presumptions which in our considered view is not sustainable.
14. For the reasons stated above, this appeal by Mazhar Hussain son of Ghulam Haider, appellant, is allowed. His conviction and sentences are set aside and he is acquitted of the charge. The appellant is in Jail. He shall be released forthwith if not required in any other case.