' IBADAT YAR KHAN, J.-- Mian Muhammad Nawaz Naikokara learned Sessions Judge, Bhakkar, has convicted appellants Muhammad Iqbal and Mst. Zarina under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced each of them to suffer R.I. For ten years, thirty stripes and to pay fine of Rs,5,000 or in default of payment of fine to further undergo R.I. For one year. The present appellant Muhammad Iqbal and one co-accused Sanaullah both sons of Dost Muhammad were put on trial before the learned Sessions Judge for abducting Mst. Zarina wife of Muhammad Nawaz on the night between 5th and 6th of May, 1986 and thereafter keeping her with them for a period of 5/6 months. Both of them were charged under section 16 of the said Ordinance, but as the offence was not proved they have been acquitted under this charge. Both of them were further charged for committing Zina with her, but co-accused Sanaullah has been acquitted for want of proof. It is held in the judgment that Mst. Zarina was a consenting party as such she has also been convicted and sentenced under section 10(2) of the said Ordinance as stated above. Both appellants Muhammad Iqbal and Mst.
Zarina have filed separate appeals being Criminal Appeals Nos. 50/I and 54/I of 1988 against their conviction and sentence. As these appeals have been filed against a single judgment, we would also dispose of these two appeals by this judgment as the facts are the same.
2. The facts of the case are narrated in the F.I.R. (Exh.PA.) which was recorded by P.W.7 Muhammad Nawaz S.I. P.S. Kallurkot, District Bhalckar at 11- 00 a.m. On 1-6-1986 on the complaint of Muhammad Ramzan (e.W.1 who happens to be father-in-law of the abductee Mst. Zarina). The complaint disclosed that Mst. Zarina was married to the son of the complainant Muhammad Nawaz 8/9 years back and had two issues from this wedlock and was living with her husband at their house in Basti Sohanwali, within the jurisdiction of P.S. Kallurkot. Appellant Muhammad Iqbal and acquitted co- accused Sanaullah both sons of Dost Muhammad resident of Pattiwala Dakhli, village Ghulaman used to visit their. Aunt Mst. Amiran wife of Ghulam Haider. The houses of Mst. Amiran and Muhammad Nawaz were adjacent to each other. During these visits appellant Muhammad Iqbal had developed illicit connections with Mst. Zarina with assistance of his aunt Mst. Amiran. It is stated that on one occasion they had abducted Mst. Zarina from the house and had kept her with them for 15 days or so. On the intervention of the respectables of the locality they had returned the woman to her husband and promised to behave properly n future. They did not keep their promise and according to the st.r,ry they again allured and abducted Mst. ZIrina at about 11-00 p.m. In the night of 5th and 6th May, 1986. According to the version in the FIR. Mg. Zarina her husband Muhammad Nawaz and a nephew Raza Muhammad son of Ghulam Muhammad were sleeping in their Haveli when the two accused entered the house and after alluring Mst. Zarina took her alongwith them. When the husband and Raza Muhammad woke up they found that Mst. Zarina was missing from her bed. Both of them went to inform complainant Muhammad Ramzan in his house and the search of Mst. Zarina began. They saw accused Muhammad Iqbal, Sanaullah and Mst. Zarina sitting in a car. They drove away in the car immediately. At the time of her escape Mst.
Zarina was in possession of ornaments and clothes which she took away alongwith her. The details of the articles are mentioned in the F.I.R. Muhammad Ramzan then went to lodge a report. After the complaint was written down by P.W. Muhammad Nawaz, S.I. Muhammad Ramzan put down his thumb-impression on the complaint and the investigation started. P.W.7 Muhammad Nawaz S.I. P.S. Mianwali after recording the formal F.I.R. (Exh.PA.) took over the investigation of the case. He visited the scene of offence at 12-00 noon the same day, prepared the site plan (Exh.P.F.) recorded the statements of the witnesses, took in his possession the Nikahnama of Mst. Zarina with Muhammad Nawaz vide memo. (Exh.P.B.) and also arrested acquitted co-accused Sanaullah. The investigation was passed on to Abid Hussain, who has not been examined.
3. The prosecution has examined 9 witnesses. P.W.1 Muhammad Ramzan is the father of the husband of Mst. Zarina. He has filed the complaint with police and in his statement in Court repeated what he had said in the F.I.R. In his statement he has stated that Muhammad Iqbal and Sanullah had abducted Mst. Zarina on a previous occasion and kept her with them for 15 days.
Appellant Muhammad Iqbal had developed illicit connection with Mst. Zarina prior to her bduction.
That Muhammad Iqbal had eloped Mst. Zarina on a previous occasion and had given assurance on the Holy Qur'an that he would not repeat such offence again. Then he proceeds on to state that on the day of occurrence while he was asleep in his house, he was awakened by his son Muhammad Nawaz and Raza Muhammad P.Ws. And was informed of the disappearance of Mst.
Zarina from the courtyard of the house of Muhammad Nawaz. On this information he had gone out of the house and seen a white colour car in which Mst. Zarina and her two abductors were sitting.
They had escaped driving away the car before he could apprehend them. After reporting the matter to the police he did not go with the police in search of the abductee nor he knew as to when she was recovered. The delay iniodging the F.I.R. Has been explained by this witness by saying that during this period of 25/26 days they were negotiating with the accused for the return of his daughter-in-law using good offices of some notables of the area. He has further stated that he was again called by the police after 4/5 months and was given a surprise by finding Mst. Zarina and Muhammad Iqbal present in the police station. Both were confined in the police lock-up. He admits that no report was lodged with the police of the earlier disappearance of Mst. Zarina from her house or her recovery after 15 days from the accused Muhammad Iqbal and Sanaullah.
4. P.W.3 Muhammad Nawaz is the husband of Mst. Zarina. He has supported version of his father P.W.1 Muhammad Ramzan. In his cross-examination he has admitted that 'before awaking I had not seen any accused entering into my house or going outside of my Haveli'. He has further admitted that 'I had awakened to Raza Muhamamd P.W.1 and stated to him that my wife was not on her bed. I had not stated before the police in my statement that the accused entered into my Haveli at 11-00 p.m.'
5. P.W.4 Malik Gul Muhammad is a retired Subedar. He has remained associated with the investigation from the date of the disappearance till the date of recovery of the woman. So far as the incident of 6-6-1986 is concerned, he is the witness to handing over of the Nikahnama (Exh.P.B.) to the police by the complainant, but his main role would come later when he has accompanied the police searching party and has gone to Sukkur and Rohri and has witnessed the arrest of appellant Muhammad Iqbal on 4-10-1986 from a hotel in Darya Khan. In his statement in Court he has stated that he had gone with the police party and in his presence the police had arrested Mst.
Zarina and Muhammad Iqbal accused from a hotel at Darya Khan. On the personal search of appellant Muhammad Iqbal a revolver (Exh.P.1) alongwith six live cartridges (Exhs.P.2/1 to 6) and a licence (Exh.P.3) were recovered vide memo. (Exh.P.D.) which he had attested. He has also described the recovery of a pair of ear-rings (P.5), two Kokas of gold (P.5/1-2) and clothes etc. From the posession of the two accused at the time of their arrest. He claims that he had accompanied the police on their journey to Sukkur and Rohri in search of the accused and on 4-10-1986 at 7-30 a.m. The two accused namely Muhammad Iqbal and Mst. Zarina were arrested at his pointation while they were coming out from the hotel to board a bus.
6. P.W.5 Habib Ullah S.I. Was in charge of this case in late September, 1986. He left for Sukkur on 30- 9-1986 in search of the accused. As Muhammad Iqbal was an employee of Railway Police the 1.0, started probe from the Railway Police office at Sukkur. After visiting Rohri and Sikkur he reached Darya Khan on 4-10-1986 where he arrested appellants Muhammad Iqbal and Mst. Zarina on the pointation of P.W.4 Malik Gul Muhammad. He also recovered licensed revolver and six cartridges from the possession of the accused/appellant Muhammad Iqbal. Then he sent Muhammad Iqbal and Mst. Zarina for medical examination and after completing investigation challaned the accused.
7. P.W.6 Amir Sultan, Constable Bhakkar had accompanied Habib Ullah, S.I. On his trip to Sukkur and Darya Khan. In his statement he has corroborated the statement bf S.I. Habib Ullah. He took Mst.
Zarina for medical examination to the lady doctor and he was handed over two sealed envelopes by the lady doctor containing material for chemical examination which he passed on to Habib Ullah S.I.
8. P.W.8 Zafar Ullah Sheikh, is Medical Officer, D.H.Q., Faisalabad. On 5104986 he examined appellant Muhammad Iqbal son of Dost Muhammad and his opinion is that Muhammad Iqbal was a young man of 32 years. He had well-developed external genetalia and well-developed secondary sexual characters. In his opinion there was nothing to suggest that Iqbal was not capable of sexual act.
9. P.W.9 Adalat Hussain is Foot Constable. On 10-10-1986 he was given two sealed envelopes by Sultan Ahmad, M.H.C. Police Station ICaiiiirkot, which he delivered in the office of the Chemical Examiner on 11-10-1986 intact.
10. The accused have pleaded not guilty. Appellant Muhammad Iqbal has denied that he abducted Mst. Zarina on the night between 5th and 6th May, 1986. He has also denied his arrest from the hotel in Darya Khan. So far as the recovery of the revolver is concerned, he admits that the weapon is his property, but it was taken over by the police from his house. He has also denied the illicit connection with Mst. Zarina. Mst. Zarina in her statement denied the occurrence of earlier abduction as well as her abduction on the night between 5th and 6th May, 1986. She denied her recovery and arrest from the hotel and disowned the articles saying that they belong to her husband Muhammad Nawaz. On the charge of Zina her answer is worth noting, which is to the following effect:- "It is incorrect in fact the complainant party in collusion with the lady Doctor and the police obtained a false report against me. I have been in the judicial lock-up for the last one and a half years. I disputed the factum of pregnancy. I was re-examined by the Lady Doctor and after reexamination she had opined that I was not pregnant."
' She has explained the presence of semen on swabs examined by the Chemical Examiner vide report (Exh.P.H.) dated 14-10-1986. Her explanation is as follows: "I was kept in the house of my husband for several days and he had been committing sexual intercourse with me. A night preceding the date of examination he committed sexual act with me."
' Her answer to question No,8 is also very revealing and can be quoted hereunder for ready reference:- "My husband is a man of mistrust nature, he suspected me of infidelity. He used to maltreat me off and on. On account of constant maltreatment I left the house of my husband on my own accord and used to live with my relatives. My parents were also under the influence of my husband so they also did not take care of me."
11. One more feature of the case, which deserves attention, is that after her recovery allegedly from the hotel she was sent to P.W.2 Dr. Falak Rifat. W.M.O. D.H.Q. Hospital, Bhakkar, who examined her on 5-10-1986. By this report Mst. Arina was found to be pregnant and the pregnancy was of two months. This is a very important feature because Mst. Zarina disappeared from the house on the night of 5th and 6th May, 1986 and was recovered after five months on the 4th of October, 1986. If the finding of pregnancy was correct then naturally this pregnancy was the result of co-habitation of this woman with her consort appellant Muhammad Iqbal. But this piece of evidence has been totally eliminated and demolished by another certificate issued by Dr. Saadat Naqvi, by whom she was examined at the request of the Superintendent, Central Jail, Mianwali under the orders of the learned District Judge. This report is speaking report and gave a clear finding that 'pregnancy test done by Pathologist is negative. So she is not pregnant'.
12. In the final analysis if the evidence on the record is sifted, it is clear that neither the charge of abduction under section 16 of the said Ordinance is established nor there is concrete evidence on the record to prove the charge of Zina within the meanings of section 10(2) of the said Ordinance.
The learned Sessions Judge has rightly held that 'charge under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, against Sanaullah and Iqbal accused is not proved because Mst. Zarina accused was consenting party'. The only charge under which the learned Sessions Judge, has convicted the two appellants Muhammad Iqbal and Mst. Zarina is the charge of Zina, but there is no evidence to support this charge. Presence of semen found on the swabs taken from the internal vagina of the woman has been explained by her in her statement quoted above in this judgment. Other material evidence was the two months pregnancy, but that too has been demolished by another medical examination dated 20-71987, carried out under the orders of the learned Sessions Judge himself. We are, therefore, of the opinion that her conviction under section 10(2) of the said Ordinance also cannot stand. We would, therefore, allow these two appeals, set aside the conviction and sentences awarded to the appellants by the learned Sessions Judge. Both the appellants should be set at liberty if they are not wanted in any other crime.