1. ' MUFTAKHIRUDDIN, J.--This is an appeal against the judgment dated 16-7-1988 passed by Additional Sessions Judge, Bahawalpur whereby the appellants (1) Muhammad Arshad s/o Faiz Muhammad, Arain and (2) Riaz-ul-Haq alias Goga son of Sadiq Arain, residents of Tehsil Hasilpur, District Bahawalpur have been convicted under sections 11 and 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and each sentenced to life imprisonment with twenty stripes and fine of Rs,2,000 or in default to suffer further R.I. For one year under section 11 of the said Ordinance and to five years R.I. And thirty stripes under section 10(3) of the said Ordinance.
2. The police was set in motion by a written application allegedly submitted on 1-8-1986 by Mst.
2. Rafiqan Bibi w/o Yasin caste Mangherah aged 18 years r/o Chak No,13/Ford, Tehsil Hasilpur, District Bahawalpur addressed to S.H.O. P.S. Hasilpur and it was submitted therein that her marriage with Yasin had taken place one year ago. Muhammad Arshad (appellant) used to drive tractor on hire basis alongwith her husband and was on visiting terms to her house. On the previous night at Maghrib-vela she was all alone in the house. Arshad and Riaz came there on the tractor and told her that her husband Yasin was injured through the tractor and the accused persons had left him in the hospital. Her husband had sent a message that she would reach the hospital, whereupon she mounted the tractor alongwith them. When they reached near the Dera of Nazir Ahmad (husband of the sister of Muhammad Arshad accused) both the accused threatened her at pistol point that if she raised the noise she would be murdered and thereafter was dragged to and confined in a "Baithak". Muhammad Arshad subjected her to zina against her will. He then went outside the Baithak at about mid-night and Riaz Ahmad accused entered the Baithak and committed Zina-bil-Jabs. On the next morning both the accused persons took her on foot and were standing in the reeds (Sarkandas) waiting for a bus when Ghulam Sarwar (P.W.2) and Muhammad Aslam (P.W.3) came there on a motorcycle. They stopped the motor-cycle whereupon she raised an alarm. Ghulam Sarwar and Muhammad Aslam ran after both the accused. Riaz Ahmad (accused) succeeded in making good his escape whereas Arshad (accused) was overpowered. Ghulam Sarwar etc. Brought her (prosecutrix) to her house. Her husband and her father had gone out of the house in search of her. On their return she came to lodge the report.
3. ' Ghulam Sarwar had brought Arshad with him. The F.I.R. Was formally registered at 7.30 P.M.
4. (Evening) at Police Station, Hasilpur by Qamar Hussain, S.H.O. (P.W.8) and the investigation was undertaken by him. Mst. Rafiqan Bibi was produced before Dr. Kalsoom Akhtar, W.M,O. Civil Hospital, the next day at 7.30 P.M. Who recorded her observations in her MLR (Exh.P/B) but expressed no opinion whether in her opinion the examinee was subjected to sexual intercourse but two vaginal swa bs were taken for chemical examination. The swabs were received by Qamar Hussain. The report of the Chemical Examiner relied by the Prosecution (Exh.PB/1) shows that a packet/envelope received from the Woman Medical Officer, Civil Hospital, Hasilpur through Jamshaid Ahmad, No,439/C bearing No, K-15/86 dated 2-8-1986 was received in the office of the Chemical Examiner on 2nd September, 1986. It may be stated at this stage that Jamshaid Ahmad, F.C. Was not examined in Court and was not even cited in the calendar of witnesses. Rana Qamar Hussain when appeared in Court Bid not say a word about the envelope and parcel (containing vaginal swabs) nor said about the person in whose custody the parcel was kept and who had been employed by him to take the same to the office of the Chemical Examiner; It is interesting to observe that Exh.PB/1 certified that swa bs are not stained with semen.
5. ' The accused Riaz was arrested on 5-11-1986 by Mukhtar Hussain, A.S.I. (P.W.5) when the application for bail before arrest of Riaz was rejected by Sessions Judge, Bahawalpur. The accused Arshad was got examined for potency by Dr. Shabbir Ahmad Goraya at Civil Hospital, Hasilpur (P.W.7) and was declared capable of performing sexual intercourse and after the investigation deemed fit by the police the accused persons were sent up to face trial.
3. Both the accused/appellants were charged under sections 11 and 10(3) of the Ordinance and on the denial of the charges by them the prosecution produced eight witnesses. Haji Allah Ditta, Inspector and Muhammad Yasin (the husband of Mst. Rafiqan Bibi) were given up as unnecessary.
6. The witnesses examined on behalf of the prosecution are-- P.W.1 (Mst. Rafiqan-- the prosecutrix), P.W.2 (Ghulam Sarwar) P.W.3 (Muhammad Aslam), P.W.4 (Muhammad Sadiq - the father of the prosecutrix), P.W.5 (Mukhtar Hussain, A.S.I.), P.W.6 (Lady Dr. Kalsoom). The witness deposed that "Result was given after chemical report Exh.P/B. The MLR is in my hand and bears my signature. I have given my final opinion on the receipt of the report of the Chemical Examiner which is Exh.PB/1")," P.W.7 (Capt. Dr. Shabbir), P.W.8 (Qamar Hussain testified that he had recorded the F.I.R.
7. And investigated the case upto 5-9-1986 and had handed over the file to S.H .0. On account of his transfer). The accused persons were examined under section 342, Cr.P.C. Denied the accusations.
8. Arshad denied his apprehension as was stated by Aslam and Sarwar, P.Ws. Arshad put his case in answer to Q.No,6 in these words:-- "I have been falsely implicated at the behest of P.W. Sarwar, who was Vice-Chairman of Union Council, 13 Ford, Tehsil Hasilpur and he was a supporter of. Syed Muhammad Akhtar Shah, Advocate who was a candidate of Provincial Assembly election in the year, 1985. I had supported Rashid Ahmad, who had contested the election against Syed Muhammad Akhtar Shah, Advocate and 4 have been involved due to the said party faction."
9. ' Riazul Hag also followed suit and repeated the same plea as was stated by Arshad. Accused produced Nazir Ahmad (D.W.1) who deposed that the prosecutrix was never brought to his house and the story as narrated by Mst. Rafiqan is false. Abdul Aziz (D.W.2) deposed that Mst. Rafiqan was not abducted. Her husband is resident of Bahawalpur and the accused have been falsely implicated. A certified copy of the statement of Mst. Rafiqan w/o Yasin (Exh.D/A) was produced.
10. This statement was recorded on the production of Mst. Rafiqan brAbdul Razzak, S.I. Police before AC/MIC/SDM Hasilpur on 13-12-1986. Mst. Rafiqan in that statement is said to have deposed that her husband "had committed zina and thereafter she was brought to Thana where), Sarwar had asked him (husband) and was replied She talks about her detention in the "Darul Aman" wherefrom she was brought by the police and was again 'taken back there.
4. The trial Court found the case of the prosecution established and convicted the accused and sentenced them as mentioned above.
5. Appellants are represented by Muhammad Latif Khosa, Advocate and Bashir Baig, Advocate appeared for the State. The learned counsel for the appellants has assailed the order of conviction and has stressed that the Court was under an obligation to enquire about the statement of Mst.
11. Rafiqan (the prosecutrix) recorded under section 164, Cr.P.C. And was not justified for the observation that Mst. Rafiqan was not confronted with that statement. The Court may be justified for technical reasons but the trial before him was under Hudood laws. The offence is punishable for life imprisonment. The Court ought to make maximum endeavour for discovering the truth for arriving at a just decision. To achieve this objective, in search for truth, the Court cannot be construed to be leaning in favour of either side or against anyone. The Court was to get at the truth.
12. The investigation was dishonest in the discharge of its duty in non-production of material evidence and the accused has introduced a fact and but due to the inexperience of the defence counsel could not put the same at the proper time but it could not relieve the Court of its duty. For just decision of the case, it was very much necessary that the trial Court should have recalled the prosecutrix and also the police officer who had produced her before the Magistrate for statement under section 164, Cr.P.C. The version contained in the statement of Mst. Rafiqan under section 164, Cr.P.C., if proved, definitely runs counter to the prosecution ease and exonerates the accused. The police officer who had produced the prosecutrix before the Magistrate has concealed the facts deliberately from the trial Court and he could have been brought to book, the Magistrate could be available and the controversy settled. The provision of section 540, Cr.P.C. In such circumstances could be utilized. This provision enables and in certain circumstances imposes on the Court the duty of summoning witness who would not otherwise be brought before the Court. The section consists of two parts, the second part imposes an obligation on the Court to summon and examine or recall and re-examine any such person if his evidence appears essential to the just decision of the case. The father of Mst. Rafiqan (P.W.4) has not concealed the fact that she was admitted to Darul Aman. In what circumstances she was sent there and why she had chosen to go back again was a material fact directly concerned with the conduct of the witnesses produced by the prosecution and was essential for the just decision of the case.
13. ' We would have remanded the case but after going through the evidence on record, we are of the view that the prosecution story is highly doubtful and it is not necessary to prolong the agony of the accused. It is alleged in the F.I.R. That Mst. Rafiqan was persuaded by the accused/appellants to leave home as her husband used to work with the accused. This has been categorically denied by no other person that her own father. It is said by the prosecutrix that at the time she was asked to accompany the accused she was all alone. This is also incorrect. Her father admits that his children were there in the house and the husband of Mst. Rafiqan 'also lived with him at the relevant time. The husband could verify the fact but he was given up being unnecessary.
14. ' Ghulam Sarwar, P.W.2 did not enquire from Mst. Rafiqan as to when she was taken by the accused.
15. She was taken home in the morning, according to Muhammad Aslam (P.W.3) at 8 A.M. And as per admission by P.W.4 (father of Rafiqan) at 6.00 A.M. The police station- is at the distance of few miles but the report of abduction was not made in the night when she was found missing neither when she had come back home in the morning. The matter was not promptly reported and there is no explanation at all for this delay.
16. ' It is said that accused.Arshad was apprehended and produced before the police by Ghulam Sarwar but the police officer at the time of registration of the F.I.R. Has not endorsed this fact and no recovery memo either was prepared. From morning till evening where was the accused kept?
17. The manner in which he was brought on the motor-cycle is simply unbelievable and. Impossible.
18. Accused Arshad was not a willing person to sit like a goat without any effort to get himself released.
19. It is said that one motor-cycle was used for carrying four persons-- two witnesses, the accused Arshad and Mst. Rafiqan. The allegation of zina at the house of the mother-in-law of the accused can hardly be believed. At any rate the zina could not be corroborated by medical evidence. The lady doctor asserts that she had expressed her opinion after perusing the report of the Chemical Examiner but the report Exh.PB/1 falsifies the prosecution case. The learned counsel for the State could not support the conviction under section 10(3) of the Ordinance. The finding of the trial Court for conviction under section 10(3) of the Ordinance is perverse in law. The prosecution has not been able to establish the charges of enticement and zina. For the above reasons the order of conviction cannot be sustained in law. Accordingly the appeal is allowed. The conviction and sentences passed against the appellants are set aside and they are acquitted of the charges and shall be released forthwith if not required in any other case.
20. PLD 1989 Federal Shariat Court 27 {{URDU TEXT}}
(a) Constitution of Pakistan (1973)- -- Art. 203-D-Central Employees Benevolent Fund and Group Insurance Act (II of 1969), S. 2(5)- Repugnancy to injunctions of Islam- {{URDU TEXT}}
(b) Constitution of Pakistan (1973) - -- Art. 203-D-Central Employees Benevolent Fund and Group Insurance Act (11 of 1969), S. 2(5)- Repugnancy to Injunctions of Islam- {{URDU TEXT}} {{URDU TEXT}} "Section 2, subsection (5) shall be amended to provide that in case of Muslims the word 'family' will mean heirs according to the personal law of the deceased." {{URDU TEXT}}