IBADAT.YAR KHAN, J.---These are two connected appeals which are filed against judgment of the learned Additional Sessions Judge, Mianwali, convicting the two appellants under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). The two appellants Umar Hayat and Mst. Ghulam Faridan are husband and were.
The charge against appellant Umar Hayat accused is that he abducted a young unmarried girl Mst. Irshad Bibi in order to compel her to marry him and then he also committed Zina with her. The charge against Mst. Ghulam Faridan is that she facilitated and abetted the offence of Zina as well as abduction of Mst. Irshad Bibi. The sentences awarded to both the appellants are also very severe. Appellant Mst. Ghulam Faridan has been sentenced to life imprisonment and to pay fine of Rs.5,000 or in default of payment of fine to further undergo R.I. For six months under section 11 of the Ordinance read with section 114, P.P.C. And to fifteen years' R.I. And whipping numbering thirty stripes under section 10(3) of the Ordinance. Appellant Umar Hayat has been sentenced to life imprisonment, thirty stripes and fine of Rs.5,000 or in default to further undergo R.1. For six months under section 11 of the Ordinance and to fifteen years' R.1 and thirty stripes under section 10(3) of the Ordinance. The third accused,, Dost Muhammad, who figures out very prominently in the whole prosecution story from beginning to end has been acquitted by the learned Judge.
2. The prosecution story is spread over from the place of occurrence in village Hernoli from where the girl was abducted to the place of recovery in village, Chhapanwala in District Faisalabad. In each part of the story there are two sets of witnesses. Before examining the two parts of the story it is better to reproduce in brief the story itself.
3. P.W.3 Jahan Khan is father of the abducted Mst. Irshad Bibi. On his complaint F.I.R.(Ex. P.B.) was recorded in Police Station Piplan, District Mianwali, on 23-2-1989 at 4/5 p.m. Jehan Khan's story, according to the F.I.R., was that he was residing in house with his young daughter aged 13/14 years and sons Muhammad Asghar and Muhammad Ashraf, aged 10, 7 years respectively. That for the last two months his were had gone to Dera Ghazi Khan for her treatment and was staying with her sister. That accused Umar Hayat was his neighbour and was on visiting terms with the complainant. That he had developed illicit connections with his young daughter Mst. Irshad Bibi. On this account he had stopped him from visiting the house. That a couple of days before i.e. On 21-2- 1989 at 8.00 P.M. Mst. Irshad Bibi had gone out of the house for urinating. As she did not return for quite some time he became restless and went out of the house in search of his daughter. He met Muhammad Yaqoob Khan and Muhammad Aslam, Pathans, at the Adda Hernoli, who informed him that they had seen Mst. Irshad Bibi accompanying Umar Hayat Barbar and his were Mst.
Ghulam Faridan at the bus stop boarding a bus bound for Quaidabad. On this information Jahan Khan alongwith Muhammad Yaqoob Khan and Muhammad Aslam reached Quaidabad in a car but could not get any clue. He had, therefore, come to lodge the F.I.R. Against Umar Hayat, who has abducted his daughter with help of his were Mst. Ghulam Faridan for committing zina upon her.
4. The F.I.R. Was recorded by P.W.2 Asmatullah Khan,, Moharrir, in the Police Station Piplan.
5. It is pertinent to note that on this part of the story no witness was examined at the trial. None of the two witnesses, who had seen the escapees boarding a bus on 21-2-1989 at 8-00 p.m. Was produced. Thus the version of Jahan Khan remained uncorroborated and merely hearsay.
6. To pick up thread again on the other part of the story which relates to recovery P.W.6 Amir Khan, Ex-Chairman, Union Council, produced the girl before the police on 9-3-1989, about a fortnight after the incident. This Amir Khan has made a statement that one Muhammad Sher had informed him that a girl Irshad Bibi was abducted and was residing in his village Chhapanwala. He went to the village. It was night time. But could not find the girl. Next morning she was produced before him and he brought the girl to the Police Station Piplan and handed her over to the police on 9-3-1989.
This bare statement left many a question unanswered. From whom she was recovered, where had she lived in village Chhapanwala etc. Etc. In this view of the matter even the recovery from the possession of the accused was very doubtful. When the appeals,, were heard by us we noticed that unpardonable lapses had been committed by the learned A.D.A., who had conducted this case and unfortunately these lapses and shortcomings had gone unnoticed even by the learned Judge.
We, therefore, remanded the cases to the learned Judge with the .Direction that most important and material witnesses on both parts of the story had been left out and they should be examined.
Consequently Muhammad Yaqoob Khan and Muhammad Aslam, who were 4lleged to be the witnesses of the date of occurrence and who had seen the accused and the appellant boarding a bus together on 21-2-1989, have been examined and their statements are now apart of the record.
Similarly a great link on the point of recovery of the girl from the house of the accused/appellant and her handing over to P.W.6 Amir Khan was Muhammad Sher Kalayar. He has also been examined as P.W.12 and his statement is also the part of the record before us.
7. Now we have before us a clear picture of the prosecution case and to start with it would be better to refer. To the statements of abductee Mst. Lrshad Bibi, who has been examined as P.W.4. In her statement in Court she has stated that Jahan Khan is her father. Umar Hayat and Mst. Ghulam Faridan were residing in the neighbourhood in same village Hernoli. Mst. Faridan occasionally used to visit their house while her parents were away and used to give allurements for providing precious things to her if she left her house. Her father did not approve the conduct of Mst. Ghulam Faridan and asked her not to meet Msc Ghulam Faridan. She further proceeds on to state that on the night of occurrence she herself became anxious to meet Mst. Ghulam Faridan and told her father that she wanted to go out of the house for easing herself. On coming out of the house after getting leave of the father on this excuse she came out of the house and proceeded to meet Msl.
Ghulam Faridan. There she met Umar Hayat, husband of Mst. Faridan, and another man Dost Muhammad (acquitted accused). All the three put her in a Datsun and drove away hrom their house. They took her to a village Chhapanwala to the house of Dost Muhammad, co-accused. This Court had a Kothi. Dost Muhammad allowed the three namely Umar Hayat, Mst Ghulam Faridan and Mst. Irshad Bibi to live in this Kothi. The three lived together in this Kothi. During her stay appellant Umar Hayat was insisting that she should contract marriage with him. One night Umar Hayat made an advance towards Mst. Irshad Bibi. She states that Mst. Ghulam Faridan caught hold of her and Umar Hayat committed Zina-bit-jabr on her. Next morning she narrated the incident to Dost Muhammad and others. Muhammad Sher P.W also heard this story and Muhammad Sher sent for Muhammad Amir Khan (P.W.6), Chairman Musakhel. When Amir Khan came the appellants and one Hayat brother of Dost Muhammad removed her from the house and kept her hidden in the fields nearby during the night. In the morning Muhammad Sher found her and handed her over to Muhammad Amir Khan. Afterwards she was produced,, by Muhammad Amir Khan before the police. She was sent to Darulaman where she lived for 6/7 days. She was also, examined by Dr. Kaukab Sultana on 9-3-1989, perhaps the next day of her recovery. On 13-3-1989 she was produced before Ch. Ghulam Rasool, a Magistrate who after complying with the requirements of law recorded her statement under section 164, Cr.P.C which is Ex. P.G.
8. The story of her journey from the village Hernoli to the place of her confinement in the house of acquitted accused Dost Muhammad in village Chhapanwala is supported by P.W.13 Muhammad Yaqoob Khan and P.W.14 Muhammad Aslam, who have been examined by the learned Additional Sessions Judge on the direction from this Court on 18th and 25th February, l991.
9. P.W.13 Muhammad Yaqoob Khan in his statement on oath has stated that "on 21-2-1989 at 8/9 p.m I and Muhammad Aslam were sitting outside my house. He had seen Umar Hayat, Ghulam Faridan accused and Irshad Bibi and one Dost Muhamiilad boarding a wagon and had left for Quaidabad side. After a short while Jahan; father of Irshad Bibi had come there and asked about the whereabouts of Irshad Bibi. I told them the aforesaid incident. Then we both searched for the girl but they could not be traced out. The accused abducted Irshad Bibi with intention to commit Zina-bil-jabr with her."
10. P.W.14 Muhammad Aslam was also an eye-witness of the occurrence but he had some inhibition to make a plain statement in Court and was declared hostile. If his cross-examination is read carefully the prosecution story gets support from his admissions. He started the statement by saying "I know nothing about this case." Thereafter following answers were elicited from him: "I had gone to my cousin Muhammad Yaqub at Harnoli. The father of the abductee asked about Irshad Bibi to Muhammad Yaqub but I do not know if Yaqub Khan told the complainant that Irshad Bibi has been abducted,, by the accused Umar Hayat. It is correct that 1, Yaqub Khan and the complainant have been searching for Irshad Bibi and the accused Umar Hayat and Faridan as according to Yaqub and the complainant they had taken away the abductee Irshad Bibi."
11. The story that the girl remained in the house of Dost Muhammad with the appellants is supported not only by the statement of the abductee herself but also by two independent witnesses namely P.W.6 Amir Khan and P.W.11 Muhammad Sher, who has been examined by the learned Judge on the direction of this Court.
12. P.W.12 Muhammad Sher has stated that in February 1989 he came to know that Umar Hayat, Mst.
Ghulam Faridan and Dost Muhammad had abducted a girl Mst. Irshad Bibi from Mianwali District and that Zina was being, committed in his village by Umar Hayat upon her. He further states that "I then visited the house of Noor Muhammad, who is Hajam by caste, and found that the accused Umar Hayat and Ghulam Faridan were detaining Irshad Bibi aged 13/14 years, the abductee. On my query Mst. Irshad Bibi told me that the accused Umar Hayat, Ghulam Faridan and Dost Muhammad have abducted her and that Umar Hayat accused has been committing Zina-bil-jabr uponher after her abduction. I at the request of Irshad Bibi informed Amir Khan Chairman Musakhel P.W.
Who came in our village on 7/8-3-1989. The accused tried to take away the girl somewhere else but they were apprehended and I entrusted the custody of Irshad Bibi to Amir Khan, Chairman P.W., who produced her before the police at Mianwali".
13. Amir Khan, who was Chairman of Union Council Musakhel, has supported the version of Muhammad Sher in the following words: "Muhammad Sher P.W. Informed me from Chak No.570/G.B. Chhapanwala that Mst. Irshad Bibi is there in their village after having been abducted. Then I went there at night time, the accused hid the abductee somewhere and in the morning she was produced before me. I brought her from there and handed over to police in Police Station Piplan on h-3-1989."
14. So far as the question of abduction is concerned, the version of the abductee herself as well as the supporting evidence of Yaqoob and the recovery from village Chhapanwala from the house of Dost Muhammad leaves no doubt that the young girl had been abducted.
15. Turning to the question of Zina there is a clean statement of the victim herself. The media report of Dr. Kaukab Sultana, who had examined her just after the recovery on 9-3-1989. In her statement in Court the lady doctor has referred to the observation she made at the time of clinical examination. She expressed the following opinion: "I have seen the report of the Chemical Examiner Ex.P.F./2 which is in the positive and it is indicated that the swa bs are stained with semen. In view of this report I am of the opinion that intercourse has been done with Mst. Irshad Bibi:"
16. It is nobody's case before us that Mst. Irshad Bibi during her journey from village Chhapanwala to the police station and from the police station to the hospital was at any stage exposed to any risk of being raped. Nor the girl herself makes any such allegation against any one. Her recovery from the custody of the appellants coupled with the presence of semen on the vaginal swabs is strong circumstantial evidence to support her own statement that she was raped by appellant Umar Hayat. In this view of the matter the conviction of appellant u mar Hayat on both counts seems to be fully justified and there seems to be no reason to interfere with this conviction in his appeal.
17. The other male accused Dost Muhammad, who was joined as an accused person after the statement of the abductee under section 164, Cr.P.C. Has been acquitted on the benefit of doubt by the learned Judge. As a matter of fact his role from beginning to end from the house of appellant Umar Hayat to his own house in village Chhapanwala has been. . No different than that of the two appellants before us, yet he has been given benefit of doubt by the learned Judge. Nobody should grudge his fate. But it is rather queer that while he has been exonerated of the charge of abduction as well as of an abetment under section 114, P.P.C. a woman,, who also happens to be the were of the male accused has been condemned by the learned Judge. It is hard to believe that a woman ruled by the feminine instinct of jealousy with another woman in matters of sexual relationship should become a tool in the hands of her husband and-encourage him to cultivate sexual relationship with another woman. There may be rate exceptions. But as a rule which is firmly rooted in history a were should sacrifice and stake everything to ensure that no other woman gets access to her husband. Here Mst. Ghulam Faridan, a were is being charged for facilitating the abduction of another woman by her husband from village Harnoli and then during the night of the rape she has been assigned a role of physically assisting her husband to satisfy his lust with this woman. This consideration apart,, there is another angle to further examine her role.
18. Assuming for the moment that Mst. Ghulam Faridan had given company to her husband while he was escorting Irshad Bibi out of her village, can it be said with certainty that she was a willing associate in the crime and was not a victim of circumstances. Merely trailing along with her husband during that journey would not show that she was an accomplice in a crime postulated by sections 10(3) and 11 of the Ordinance.
19. The allegation about Faridan overpowering the victim and allowing her husband to enjoy sexual urges seems to be frightfully absurd. There was neither a necessity nor a pleasure for female twist.
Faridan to undertake,, a role for such a performance. On the contrary it would be more natural that the concubine is pouring her venom by concocting this tale and putting Faridan in the defensive.
20. Lastly the crime of Zina is being punished by giving full dose to the male accused. What benefit can anyone draw in bracketing a female in the crime and by taking pains to somehow connecting Mst. Faridan with the violence---s that the male had committed and burdening her with full liability. Actually she is at a higher footing than Dost Muhammad, who has been acquitted by the learned Judge. In my opinion ends of justice would be met if the crime is punished by upholding,, the conviction and sentences awarded to appellant Umar Hayat and in the situation of the case by absolving appellant Mst. Ghulam Faridan from the charges. I would, therefore, dismiss the appeal of Umar Hayat and affirm his conviction and sentences. The appeal of Mst. Ghulam Faridan (Jail Criminal Appeal No.90/I/90) should be allowed and she should be acquitted of the charges. She should be released forthwith if not wanted in any other case.