TANZIL-UR-REHMAN, CJ.--- This appeal arises out of judgment dated 12th October, 1989 passed by Additional Sessions Judge, Khushab whereby the appellant was convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 10 years' R.I. With whipping numbering 30 stripes and fine of Rs.10,000.
2. On the statement of Muhammad Hayat (P.W.5) an F.I.R. Exh.P.C. Was recorded on 24-12-1985 by Syed Amir, Moharrir Head Constable No.66, Police Station Gunjial, District Khushab. In the said F.I.R. It was reported that Mst. Sultan Bibi, daughter of Muhammad Hayat, who was married to Muhammad Bakhsh two years ago had come to his house due to strained relations with her husband and was living with him for about a year. Rab Nawaz, the stepbrother of Muhammad Hayat established illicit connection with Sultan Bibi and 15 days before lodging the report Rab- Nawaz enticed away his daughter Mst. Sultan Bibi, with intent to have illicit intercourse with her, during night time when he and his were were asleep.
3. After registering the case, Ghulam Ali S.I. (P.W.2) carried out preliminary investigation and also obtained warrants of arrest of Rab Nawaz and Mst. Sultan Bibi from Magistrate 1st Class Joharabad.
The investigation was then transferred to Nazar Muhammad, S.I.(P.W.6). On 4-4-1987 the said Nazar Muhammad received an information that Rab Nawaz and Mst. Sultan Bibi were residing at Muhammadi Colony, Karachi.. Accordingly, Nazar Muhammad proceeded to Karachi. At Muhammadi Colony, Karachi he found Rab Nawaz and Mst. Sultan Bibi and also a minor girl aged about 7/8 months present there. He left for Lahore alongwith Rab Nawaz, Sultan Bibi and the baby Nasreen Akhtar. On their way to Lahore Mst. Sultan Bibi slipped away on the pretext of going to toilet. When he reached Okhli Mohla, the baby was handed over to the were of Muhammad Hayat, and Rab Nawaz was formally arrested on 9-4-1987 and sent up for trial in the F.I.R. Case No.129 dated 24-12-1985, under section 10 and section 16 of Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 on the allegation that he had enticed away Mst. Sultan Bibi his niece and thereafter committed Zina with her.
4. The prosecution examined six P.Ws. To prove its case. P.W.1 Dr. Pirzada Syed Muhammad Alam Shah carried out potency test of Rab Nawaz and found him fit to perform sexual intercourse. P.W.2 Ghulam Ali, S.I stated on solemn affirmation that on 24-12-1985 he was posted as S.H.O. Police Station Gunjial. Investigation of the case was partly carried out by him. He recorded the statements of Allah Yar and Muhammad Mumtaz and made inspection of the place of occurrence and prepared a sketch. On 3-4-1986 he procured warrants of arrest of Rab Nawaz and Mst. Sultan Bibi.
Thereafter, the case was transferred from him. P.W.3 Muhammad Shafi Constable No.99 stated that on 31-5-1986 he was entrusted with the warrants of arrest of Rab Nawaz and Mst. Sultan Bibi. The warrants were not executed because they were not traceable. P.W.4 Allah Yar stated that about three years and eight months ago, he was coming from Khushab alongwith Mumtaz P.W. At about mid-night, at the Adda of Okhli Mohla he found Rab Nawaz and Mst. Sultan Bibi there. On enquiry made by them they stated that one of their relatives was ill in Quaidabad and they were going there to see him. He further stated that both of them boarded the bus which proceeded towards Mianwali. In the morning, Muhammad Hayat P.W. Came to him enquiring about Mst. Sultan Bibi and then he narrated him the story of having seen Rab Nawaz and Mst. Sultan Bibi at the Lorry Adda.
P.W.5 Muhammad Hayat father of the alleged abductee Mst. Sultan Bibi stated that she was married two years prior to the occurrence. The relations between the spouses got strained and she came back to his Dera after about a year of the marriage. No issue was born to her during the said wedlock. On the Dera, he was residing alongwith his were, Sultan Bibi and Rab Nawaz the appellant, who is his stepbrother but real from paternal side. Rab Nawaz established illicit connections with his daughter Sultan Bibi and enticed her away for the purpose of illicit intercourse. She was abducted at night time. At morning time when he found Mst. Sultan Bibi missing he enquired about her and proceeded to the house of Allah Yar, who was brother of Chairman, Union Council. Allah Yar narrated to him the story of having seen Rab Nawaz in the company of Mst. Sultan Bibi at the Adda Okhli Mohla boarding a bus and proceeding towards Mianwali. He carried out search of Rab Nawaz and Mst. Sultan Bibi and upon failure he reported the matter to the police. Nazar Muhammad A.S.I. Secured a baby namely Nasreen Akhtar aged about 7/8 months born to Mst.
Sultan Bibi, as a result of illicit intercourse of Rab Nawaz with her. In cross-examination he was confronted with Exh.P.C. Wherein the appellant Rab Nawaz was not mentioned as residing alongwith him at the Dera. It was admitted by him that prior to the registration of the case he had no suspicion about the appellant. He stated that his father had contracted second marriage with Alam Khatoon, the mother of Rab Nawaz) who has also died. It was also admitted by him that he did not see the appellant committing Zina with Mst. Sultan Bibi and that after abduction none of them had seen Sultan Bibi alongwith the appellant. P.W.6 Nazar Muhammad, A.S.I. Stated that on 4- 4-1987 he was posted at' Police Station Gunjial. He had partly carried out the investigation of the case. Having received the information that Sultan Bibi and Rab Nawaz were residing at Karachi he proceeded to Karachi and on 6-4-1987, reached Muhammadi Colony, Karachi. He interrogated the appellant and Mst. Sultan Bibi and included them in the investigation. Mst. Sultan Bibi was having a daughter Nasreen Akhtar aged about 7/8 months. Accordingly he brought them from Karachi. On 8-4-1987 when the train reached near Dehrki, Mst. Sultan Bibi asked him to allow her to go to toilet for urination purpose. She left Nasreen Akhtar on the seat and proceeded to the toilet. Thereafter, she did not turn up and slipped away. He searched for Sultan Bibi but she was not traceable. He, however, alongwith Nasreen Akhtar and Rab Nawaz appellant came to Okhali Mohla on 9-4-1987.
During the course of investigation he came to know that Sultan Bibi was abducted by Rab Nawaz and at that time, Mst. Sultan Bibi was not having any issue. Accordingly the appellant was arrested by him and the baby was handed over to the were of the complainant Muhammad Hayat. He further stated that during the investigation the appellant and Mst. Sultan Bibi were found involved in the case and they were accordingly challaned. In the cross-examination he admitted that he had not obtained any permission from S.P. Or the District Magistrate to proceed to Karachi after receiving spy information on 4-4-1987. He had also not secured warrants of arrest of the appellant and Mst. Sultan Bibi from Superintendent of Police or from any Court of law. He had taken only one constable with him namely Khuda Bakhsh. He had not even taken any arm with himself as he did not consider it appropriate to take arm with himself. He admitted that no statement of either the appellant or Mst. Sultan Bibi was recorded at Karachi.
5. After the prosecution evidence was closed the appellant was examined under section 342, Cr.P.C. Wherein it was stated by him that he was arrested from his house. In reply to question 12 as to why the P.Ws. Had deposed against the appellant he replied as under:-- "The true facts are that beside myself, Haq Nawaz and two sisters of mine were residing with me. I got married my two sisters. My father was residing with me who is an aged person of about 80 years. The complainant Muhammad Hayat had been demanding his share from the agricultural land as well as from the residential property, which was refused by my father alongwith myself, and the result was that my relations with Muhammad Hayat complainant got strained and he falsely implicated me in this case. Now Muhammad Hayat is in possession of whole land belonging to my father. The witnesses are inimical towards me as they are close to Muhammad Hayat complainant.
I am Muslim and I cannot dare to commit Zina with my own niece.
6. We have heard the learned counsel Mr. Muhammad Raj Siddiqui with Mr. Mushtaq Ali Tahirkheli, appointed by the Court at State expense, and Mr. Muhammad Akhtar, Additional Advocate- General Punjab with Mr. Faiz-ur---Rehman's, Advocate for the State. It was submitted by the learned counsel for the appellant that the prosecution has not been able to prove that the appellant was living with the complainant (P.W.5) and had established illicit connection with his daughter Mst. Sultan Bibi. The prosecution has also failed to prove the alleged fact of abduction of Sultan Bibi by the appellant. The recovery of appellant Mst. Sultan Bibi and the baby at the Karachi had not been proved at all. Furthermore, there is no evidence at all that the appellant was living with Mst. Sultan Bibi and as a result of sexual intercourse with her baby Nasreen Akhtar was born.
7. We have gone through the record of the case with the assistance of the learned counsel for the appellant and find that there is substance in the submission made by him. Except the statement of P.W.5 Muhammad Hayat there is no evidence at all either direct or circumstantial that the appellant was living with the complainant P.W.5 in his house or at least staying with him in the night of the alleged occurrence. It has come in the evidence that the father of the complainant had contracted second marriage with Mst. Alam Bibi and has four children from her viz. The appellant, his brother Haq Nawaz, and two sisters who are not married. There seems to be no point in appellant's living with the complainant P.W.5. In fact in his statement Exh.P.C. The complainant did not mention that Rab Nawaz was living or staying in his house.
8. There is also no evidence that the appellant had established illicit connection with Mst. Sultan Bibi before the occurrence. The complainant had admitted in the cross-examination that he had not seen the appellant Rab Nawaz committing Zina with Sultan Bibi and so also, after the alleged abduction none of them had seen Mst. Sultan Bibi living with the appellant.
9. As regards the alleged abduction, there is only a statement of Allah Yar that he and Mumtaz who was with him, had seen, at about mid-night of 9/10th of December, 1985 the appellant and Mst.
Sultan Bibi together, and on enquiry he as well as Mumtaz were informed that they were going to Quaidabad to see their ailing relative and this fact was narrated by him in the morning to the complainant who had come to his house. This witness had stated that one Mumtaz was also with him at that time but Mumtaz had not been produced as a witness. Furthermore, if it is true that he had seen the appellant and Mst. Sultan Bibi at the bus-stop and narrated the said fact to the appellant in the following morning, there seems to be no cogent reason for the complainant for not reporting the matter to the police the same day i.e. On 10th of December, 1989. The complainant's waiting for two weeks and searching the appellant and the alleged abductee by himself for the sake of family honour does not appeal to reason as the fact of abduction was already known to other persons namely Allah Yar and Mumtaz.
10. Now there remains the sole word of P.W.6 Nazar Muhammad A.S.I. Who has carried out the second part of investigation and according to him he was bringing the appellant, the alleged abductee and the baby from Karachi to Lahore when the abductee slipped away on the pretext of urination but it has been admitted by him that he had not obtained any permission from the Superintendent of Police or the Magistrate to proceed to Karachi in connection with the case on receipt of a spy information on 4-4-1987. He had not secured the warrants of arrest of the appellant or the abductee from the S.P. Or the Court of law where the challan had already been presented. Surprisingly he had not taken any arm with him except one constable Khuda Bakhsh.
Again it is conspicuous to note that constable Khuda Bakhsh was not examined in the Court. As admitted by him he even did not record the statement of Khuda Bakhsh. Admittedly no statement either of the appellant or the alleged abductee was got recorded at Karachi and no assistance was taken from the Karachi Administration Authorities. The slipping away of Mst. Sultan Bibi at Dehriki station was not even reported to the Railway Police or any other authority. There seems to be no reason as to why the appellant and the alleged abductee were not arrested by him if he had gone to Karachi in connection with the case pending against them in the Court of law, and travelled all the way from Khushab to Karachi for the purpose of securing the appellant and the alleged abductee who were required in the case and against whom the warrants of arrest had earlier been procured. No memo of recovery of the appellant, the alleged abductee and the baby was prepared at Karachi, or any other place. No statement of any one of the neighbour residents of the Muhammadi Colony was recorded. In fact, there is stated no address of street or number of the house where the appellant and the alleged abductee and the baby were found and recovered.
This makes the entire story of finding the appellant with the alleged abductee and the baby at Muhammadi Colony at Karachi highly unbelievable.
11. As to the alleged illicit connection of the appellant with the alleged abductee it has been clearly stated by P.W.6 in cross-examination that "during the course of investigation neither Mst. Sultan Bibi, nor the accused told him that Mst. Nasreen Akhtar was born due to their illicit intercourse.
When they reached the Okhli Mohla, then Rab Nawaz accused admitted before me that Nasreen Akhtar was born due to his intercourse with Sultan Bibi." The complainant P.W.5 had denied having seen the appellant committing Zina with Mst. Sultan Bibi even after abduction, none of them had seen the appellant alongwith the appellant living with Mst. Sultan Bibi, the alleged abductee.
12. So there is no evidence of illicit intercourse even of the appellant with the alleged abductee.
There is a complete absence of any evidence of living together of the appellant and the alleged abductee.
13. Besides, there appears to be a motive for implicating the appellant in the case and that is the strained relations, family disputes over some land and other property of the father of the complainant as well as the appellant. All these facts taking together, we are clear in mind that the prosecution has failed to prove its case against the appellant without reasonable doubt. We, therefore, allow this appeal, set aside the conviction and sentences passed by the learned Additional Sessions Judge and acquit the appellant from the charge, giving him the benefit of doubt. He shall be released forthwith if not required in any other case.
N.H.Q./564/F.S.C.