Akhtar Aziz, appellant in Criminal Appeal No.159/I of 19 xH) and Mst. Robina Nasim, appellant in Criminal Appeal No.104/I of 1990, have been convicted by the learned Additional Sessions Judge, Rawalpindi, vide judgment dated 31-7-1990, under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and have been sentenced to suffer R.1. For rive years, pay fine of Rs.5,000 each or in default to further undergo R.1. For six months each. They are also awarded a sentence of twenty stripes each. Against this judgment both have filed separate appeals.
2. Originally they were challaned by the police under sections 10 and 11 of the Ordinance and both of them were charge-sheeted by the learned Judge under section 11 as well as under section 10(2) of the Ordinance. After recording the evidence the learned Judge came to the conclusion that no offence was made out against either of them so far as section 11 of the Ordinance was concerned.
He, however, has chosen to convict both of them under section 10(2) of the Ordinance. As both of them have been acquitted under section 11 of the Ordinance the learned counsel appearing for the appellants contended that they would not dilate much on the part of the case relating to the offence of abduction and would confine themselves to the charge under section 1.0(2) of the Ordinance, under which both of them have been convicted.
3. Ghulam Nabi, father of appellant Mst. Robina Nasim, has other daughters also. Mst. Waheeda Nasim, elder sister of Mst. Robina Nasim, who is one of the daughters of Ghulam Nabi, is were of appellant Akhtar Aziz. The two are living happily and had two children at the time when the dispute arose.
4. On 3-1-1989 at 11-00 a.m. P.W.1 Nisar Ahmad son of Ghulam Nabi, who is brother of Mst. Robina Nasim, lodged an F.I.R. In Rewat Police Station, District Rawalpindi, that on 28-12-1988 appellant Akhtar Aziz, his younger brother Javed Aziz, their mother Mst. Khurshid Begum and sister Mst.
Yasmin had paid a visit to the house of complainant. The object of their visit was to press their demand for the hand of Mst. Robina Nasim for younger brother of Akhtar Aziz. The family was demanding this for quite some time and had been repeating the request from time to time but were always refused by the father of the complainant. To press their demand and persuade the father to agree to their request the visitors stayed with the complainant's family for the night. At the time of morning prayers they left the house in a rage. A little while later the complainant's party noticed that complainant's sister Mst. Robina was also not present in the house. They became disturbed and set out for her search. During the search they came across Jahandad, an uncle of Mst. Robina Nasim and one Muhammad Sarwar. The two informed the searching party that they had seen Mst. Robina Nasim with Akhtar Aziz, Javed Aziz, their mother and sister going together in a green car. That they had wished,, each other. On this information the complainant and his parents went to the house of their son-in-law Akhtar Aziz. After complaining about appellant's conduct they asked for the return of Mst. Robina Nasim to them. Parents of appellant Akhtar Aziz after some time assured the party that they would restore Mst. Robina and would themselves, bring her to the complainant's house. On this assurance the party returned to their house. They waited, for two days and as Mst. Robina Nasim was not returned to the parents they were obliged to file this F.I.R. On this rather unusual complaint, lodged in the afternoon of 3-1-1989 it is not clear what further steps were taken by the party.
5. The other chapter of the story, however, according to the prosecution, starts on 27-1-1989 when P.W.12 Muhammad Jamil, A.S.I., during his patrol duty came to know through some spy information that someone was coming from the side of Gujar Khan in a bus and had unlicensed revolver in his possession, in violation of section 144. Cr P.C. Which was in force during those days. The vigilant ASI sighted the bus and on the pointation of the informer brought down Akhtar Aziz from the bus and as a result of his body search recovered a revolver, a key ring with three keys, some cash, identity card and a photograph (Ex. P.D.). On questioning about, the identity of the woman in the photograph the stranger disclosed that the woman is his sister-in-law. That an abduction case had been registered,, against him at Police Station Rewat. He further disclosed, that his sister-in- law (Mst. Robina Nasim) was present in his house in Gujar Khan in Ward No.16. The ASI then proceeded to state that he chose to pick up further links of investigation and escorted Akhtar Aziz to village in Ward No.16, Gujar Khan. It appears to be a strange coincidence that when he reached there he found that the father of the abductee Ghulam Nabi and Muhammad Sabir Hussain were already, there, who readily obliged this inquisitive police officer by becoming recovery witnesses of the abductee Mst. Robina Nasim and readily attested the recovery memo. (Ex. P.B.) which was prepared by ASI Muhammad Jamil. A.S.I, brought the two appellants to the Police Station and handed over further investigation to Muhammad Zameer, S.I. (P.W.13). As the story goes, this P.W.13 taking up investigation from Muhammad Jamil, started recording statements of the witnesses under section 161. Cr.P.C. The girl came under his custody. It is not clear where she lived and how she was treated. She was, however, presented for medical examination before Dr. Shaheena Rafique (P.W.6) who examined her on 29-1-1989 at 4-15 p.m. After two nights and two days of the recovery and issued a certificate (Ex. P.C.). The lady doctor did not find any marks of violence on the body but on examination of the private parts of the girl found that "her hymen was old torn healed. Her vagina admitted two fingers easily. Two virginal swabs were sent for the detection of semen to the chemical examiner". The lady doctor formed a tentative opinion that the girl was subjected to sexual intercourse, but reserved a final opinion till she had seen the report of the Chemical Examiner. On 30-1-1989 the girl was presented before a Magistrate, who after complying with the formalities and satisfying himself that the statement to be made by the girl was without any pressure or allurement, recorded the statement on 30-1-1989. In this statement the entire theory of abduction, rape and recovery has been totally belied. Actually allegations of abduction against another party namely Haji Akhtar, his sister Shamim and an influential of the area Ch. Iftikhar giving a new direction to the case have been made.
6. The allegation of abduction was,, sought to be proved through the evidence of P.W.1 Nisar Ahmad, P.W.2 Ghulam Nabi and P.W.3 Jehandad, brother, father and a maternal-uncle of the abductee. As these witnesses have been disbelieved and the learned Judge has acquitted the accused on the charge of abduction, it is better to drop the matter here.
7. Turning to the question of Zina an offence under section 10(2) of the Ordinance under which the two appellants have been convicted, it is to be frankly admitted that not an iota of evidence is brought on tile record to prove the offence of Zina. The conviction has been based on account of recovery of Mst, Robina Nasim from the house of the male accused, which is also the house of the elder sister of the abductee. This so called recovery couplet: with tile presence of semen on the vaginal swa bs prepared at the time of the medical examination of appellant Mst. Robina Nasim on 29-1-1989, is the foundation of the prosecution case to prove Zina. It would be interesting to examine the discussion in the judgment relating to the charge under section 10(2) of the Ordinance. This discussion is spread over paras 14, 15 and 16 of the judgement and the crux of this discussion is assumption and inference. The learned Judge has held that "so the circumstances can lead to infer that both the accused persons have committed Zina with each other with their consent intentionally and knowingly that they were not the husband and were."
8. The factum of recovery though denied by Mst. Robina Nasim herself was sought to be proved through Peer Muhammad Shali (P.W.8), his were Mst. Ghulam Sughra (P.W.9) and Muhammad Sabir Hussain (P.W.10) and two police witnesses noticing Constable Muhammad Bashir and ASI Muhammad Jamil. Peer Muhammad Shafi is said to be the owner of the house occupied by the family of appellant Akhtar Aziz and Mst. Ghulam Sughra is were of the Peer. Both of them have categorically denied having ever let out any house or any portion of their house to the appellant.
Both have been declared hostile by the prosecution. The third public witness Muhammad Sabir Hussain has stated that on 27-1-1989 he had seen the two appellants in the Police Station where they were under interrogation of the police officers. He has also been declared hostile. Muhammad Bashir (P.W.11) has also not supported the recovery of 1st. Robina Nasim at all. He has simply acted as a mashir of arrest of the male accused at Bagh More when he was brought down from the bus and was arrested by A.S.I. Muhammad Jamil on account of possession of revolver when section 144 Cr.P.C. Was enforced. If this story of recovery having suffered irreparable damage at the hands of the recovery witnesses relied on by the prosecution goes of, the only piece of evidence is the swa bs, which had been collected from the vaginal canal of appellant Mst. Robins Nasim on the 4th day of the so-called recovery. But it should be remembered that these swabs belong to a girl whose vagina admits two fingers, whose hymen was not intact and the tears were old. On the top of it she herself admits of sexual violence being committed upon her by a different person named Haji Akhtar. She discloses this name in her earliest statement recorded under section 144, Cr.P.C. Be that as it may, technically speaking neither the recovery by itself nor, indeed, the presence of semen on the swa bs extracted from the vaginal canal of a woman can be read as an evidence against any one charged of the heinous crime of Zina. On these two propositions of law the learned counsel appearing for the appellant has relied on two cases, both fully covering the situation in hand. On the point of recovery it is categorically stated that no inference can be drawn for commission of Zina or sexual intercourse from the fact of recovery of the male and female having lived together.
9. In a Full Bench case reported in Muhammad Ashraf v. The State 1984 P Cr. L J 3202, Aftab Hussain, Chairman (as he then was) sitting with Ch. Muhammad Siddique and Maulana Muhammad. Taqi Usman, Members the following observations were made:- "There is absolutely no evidence on record about the commission of Zina or sexual intercourse by Muhammad Ashraf with Mst. Ghulam Fatima. The inference about the Zina has been drawn by the learned Additional Sessions Judge from the fact of recovery of both the appellants from the same house but that by itself would not prove Zina: "
10. So far as the presence of semen on the swabs is concerned, in a very exhaustive judgment by this Court reported in Mst. Sukhan v. The State 1985 P Cr. L J 110 the; requirements to prove the offence of Zina are enunciated Pollowiall, two passages which arc germane on this point may be reproduced: "The most essential ingredient of Zina under section 4 is penetration which is given in the explanation of this section. In simple language, penetration means entering of the male organ (penis) into the vagina. For the offence of Zina,, mere insertion of or entering of the penis into the vagina is sufficient however, slight and extent. Similarly, ejaculation or emission or seminal discharge is not necessary to constitute the offence of Zina. Similarly, love, making activities, howsoever objectionable morally and socially might be of such male and female like kissing, embracing or lying on the same cot or even lying on each other will not bring the case within the mischief of Zina unless they indulge in actual penetration.
11. Before parting with this case it would be pertinent to quote a passage from the statement of appellant Mst. Robins Nasim to show the other side of the picture: ---I am innocent. I have been falsely involved in this case. Actual facts are that on 28-12-1988 at night time, I at my own came out of my house for the call of nature and while on the way in the street, one Mst. Shamim Begum, who is the sister of Haji Akhtar my co-villager, met me and told me that I should go alongwith her at her house to see the film. In the meanwhile, Haji Akhtar who is the real brother of Mst. Shamim Begum came there and put the Chaddar upon me. I became unconscious and meanwhile Haji Akhtar and Mst. Shamim Begum forcibly abducted me.
Thereafter, said Haji Akhtar and Ch. Iftikhar confined me in a room, where Haji Akhtar had committed Zina-bil-Jabr with me till the day I was produced before the police whereas Mst.
Shamin Begum used to keep watch upon me. Haji Akhtar had the revenge against me because he demanded my Rishta for his brother Altaf, above about fifty years, to which not only I strongly opposed but also my co-accused Akhtar and my sister Mst: Waheeda Naseem alongwith other members of our Baradari opposed the said demand of Haji Akhtar and Ch. Iftikhar and to take this revenge they abducted me and also committed Zina-bil-Jabr with me. Before this, Haji Akhtar and Ch. Iftikhar also demanded the hand of my elder sister Mst. Waheeda Naseem, but that was not given to them for said Altaf but she was married to Akhtar Aziz and the said persons started conspiracy against us. My co-accused Akhtar Aziz and his family had strained relations with said Ch. Iftikhar and Haji Akhtar. I and my co-accused has been falsely involved by the said persons because my parents and brothers and other close family members are the tenants of said Ch. Iftikhar who is the Councillor/,Chairman of our village and is a influential person. They in order to take the revenge got us involved in this false and concocted case in connivance with the police. I made the above statement even when I was produced before the police by the said persons and even before the Magistrate in my statement under section 164, Cr.P.C. But the local police in connivance with the said Haji Akhtar and Ch. Iftikhar and my family members, who are under the thumb of the said persons, got me involved in this case falsely- I treat my co-- accused Akhtar Aziz just like my real brother and in return he also thinks me just like his real sister. I was never abducted by Akhtar Aziz nor he had committed Zina with me. My sister Mst. Waheeda Naseem is still living happily with my co-accused in his house. The complainant/ P.Ws. And the said Haji Akhtar and Ch. Iftikhar pressurised me to give statement against Akhtar Aziz my co-accused and his other relatives but I totally refused to accept their this illegal and unjust demand for which I have been involved in this case."
12. It is most regrettable that even at the level of the social order to which the parties belong this case such wanton charges are brought against the young girls and such dirty allegation; are woven into scandalous stories without any hitch and hesitation. This is one of the many cases in which young girls have become victim of reckless and irresponsible conduct of the so-called `notables and respectable of the area who are being tool set by the society without any protest or murmur. The learned Judge has betrayed complete lack of understanding of the facts and the law.
The exercise of analysing the facts undertaken by the learned Judge seems to be totally misdirected.
13. In the result both the appeals are allowed, the conviction and sentences passed against appellants Akhtar Aziz and Mst. Robina Nasim are set aside and they are acquitted of the charge.
Appellant Akhtar Aziz is in jail. He shall be released forthwith if not wanted in any other case. Mst.
Robina Nasim is on bail. Her bail bonds are cancelled.