IBADAT YAR KHAN, J: -- The appellant in this appeal has been convicted by the learned Additional Sessions Judge, Lahore, under section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and sentenced to suffer R.I. For ten years, ten stripes and to pay fine of Rs.2,000 or in default of payment of fine to further undergo R.I. For one year
2. The appellant was put on trial alongwith another co-accused Ashraf Masih for offences under sections 10 and 11 of the said Ordinance. Ashraf Masih has been acquitted by the trial Court and the appellant has been convicted under section 10(2) of the said Ordinance.
3. The main feature of the case is that conviction in this case can be passed only on probability as held by the learned Additional Sessions Judge in his judgment. But the question is whether such a heavy punishment can be awarded to a person without any direct evidence merely on probability.
The prosecution story as reproduced in the complaint of Fazal Masih, father of the victim, and in his statement in Court, in the statements of the witnesses and the victim herself suffers from many unexplained contradictions. To begin with the story as recorded at the instance of Fazal Masih by a Police Officer Awon Muhammad, is that on 16-3-1987 he was taking his daughter to an examination centre situated in Jinah Foundation Girls High School, Model Town, Lahore when he met a friend and stopped to talk to him. His daughter, however, continued her journey on foot. Suddenly two persons namely Yousaf Masih son of Sher Masih and Ashraf Masih son of Sohan Masih appeared and by putting the girl in a red coloured pick-up disappeared. He, the complainant, raised an alarm which attracted Indar Masih son of Shahab Masih, Nazir Masih son of Attu Masih and Tajjurk Masih son of Barkat Masih. In the complaint it was mentioned that Yousaf Masih, the present appellant, had abducted the daughter of the complainant Mst. Venus Bano in collusion with three other persons named in the complaint for committing Zina with her. It was further revealed that delay in the F.I.R. Was on account of Punchait proceedings; that through the good offices of the Punchait the accused had promised to restore the girl to the complainant, but on 25-4-1987 they had flatly refused to return the girl, obliging the complainant to lodge the complaint with the police.
It is noteworthy that no member of the Punchait before whom the assurances of restoration of the girl were made, has been examined in the case, except one Indar Masih. On this complaint the two accused were put up on trial and the learned trial Judge charged them under section 11 of the Ordinance. Appellant Yousaf Masih was further charged under section 10(3) of the Ordinance for committing Zina with the girl.
4. In support of the prosecution case 9 witnesses were examined. P.W.1 Muhammad Arshad, Constable, has collected a sealed parcel on 28-6-1987 from P.W.4 Amjad Mahmood, Moharrir and delivered it in the office of the Chemical Examiner on the same day. P.W.4 Amjad Mahmood, Moharrir, H.C. Has received the sealed envelope for keeping it in safe custody in the Malkhana and he has handed over this parcel intact to P.W.1 Muhammad Arshad for onward transmission to the Chemical. Examiner. P.W.2 Abdul Ghafoor, S.I. Has recorded F.I.R. (EXh.P.A./1) on receiving the complaint (Exh. P.A.). The witnesses of the event are only P.W.5 Fazal Masih, P.W.6 Indar Masih and P.W.7 Mst. Venus Bano. There is no other witness of the occurrence except the above three.
5. P.W.5 Fazal Masih, who is father of the girl, has stated in Court that his daughter Mst. Venus Bano was a student and was taking examination of the Secondary School Certificate in those days. He used to accompany her upto the examination centre which was situated in a School. On the day of occurrence at about 8-00 a.m. When he was escorting his daughter he met a friend and got busy in talking to him. The daughter, however, continued wa:kirg and went ahead of him. She met two accused Ashraf Masih and Yousaf Masih at Bus Stop No.13. Both of them caught hold of the girl and by putting her in a wagon went away. The witness says that he raised an alarm and Indar Masih and Nazir Masih alias Jeera were attracted and they saw the occurrence. After about three months Mst. Venus Bano was recovered from Mirpur Azad Kashmir by the Thanedar Awon Muhamamd Shah. He clearly states that he did not accompany the Thanedar when he went to Mirpur, but his son Sardar Masih went with the police. He was cross-examined and in his cross-examination he has stated that the vehicle, which the accused used for the purpose of abduction was a wagon and not a pick-up. It may be stated that in the F.I.R. He has mentioned that it was a pick-up. He gave some evasive answers in the cross-examination, which were noted by the learned trial Judge.
6. P.W.6 Indar Masih has made a very brief statement. He has stated that at about 7.30 or 8-00 a.m.
He reached near the Bus Stop No.113, Green Town, Lahore, when daughter of Fazal Masih had been abducted by Yousaf Masih and Ashraf Masih accused. He further states that when he reached, the accused had run away with their wagon from the spot. He claims that `thereafter I and Fazal P.W.
Went to the police station where Fazal P.W. Reported the mister to the local police about the present occurrence'. In his cross-examination he has stated that `there were some shops at some distance from the said bus stop. Some persons from the said shops had collected at the stop after the occurrence, but none was attracted at the time of the present occurrence. Besides, we three the above mentioned none other person had seen the occurrence'. During his cross--examination he was confronted with his statement before the police and discrepancies were noticed. He has made one important admission that `when the report was lodged by Fazal P.W. At the police station I, Nazir alias Jeera P.W. And Sardara son of Fazal P.W. Accompanied him'. He contradicts the complainant by saying `it is incorrect to suggest that after 1-1/2 months of the occurrence an application was moved to the S.H.O. By Fazal P.W. And the case was registered, volunteers that prior to it on the intimation of Fazal P.W. When we accompanied him the case had already been registered against the present accused'.
7. The third prosecution witness is P.W.7 Mst. Venus Bano. She has stated that on 16-3-1987, when she was going to take her third paper and was proceeding to examination hall, her father was accompanying her. On their way to examination hall her father was detained by a friend and she continued walking. When she reached Bus Stop No.113, she found that accused Yousaf Masih and Ashraf Masih standing by the side of a red pick-up. Yousaf Masih then asked her to take seat in the pick-up and on her refusal yousaf Masih forcibly caught hold of her arm and in spite of her resistance put her in the vehicle. Co-accused Ashraf Masih also pushed her into the wagon and the two then drove away. They used some chemical and when she inhaled she became unconscious.
On gaining consciousness she was told that she was in Mirpur Azad Kashmir in a rented house.
Accused Ashraf Masih returned and Yousaf Masih remained with her in the house. All these days Yousaf used to chain the house from outside and used to open it only on his return on the evening.
She alleged that Yousaf subjected her to Zina and also threatened her for dire consequences if she disclosed the occurrence to anyone else. She also stated that on 14-6-1987 she was recovered,, by the police from a house in Mirpur. After recovery she was produced before a Magistrate and her statement,, under section 164 Cr.P.C. Was recorded by the Magistrate. She was confronted with the admissions made in her statement under section 164, Cr.P.C. And it is proper to reproduce her cross-examination in extensor: "I was of seventeen years of age at the time of present occurrence. I had not stated before the Magistrate in my statement under section 164, Cr.P.C. That occurrence took place when I was returning from Examination Hall after the paper was over. I had also not stated before the Magistrate that then my father was also with me. Confronted with (At this stage, it is brought to the notice of this Court that the statement of the abductee, P.W. Under section 164, Cr.P.C. Is not available with the. Judicial file, though photo copy is there, she cannot be further cross--- examined by the learned defence counsel. The original statement from the concerned Court be summoned.)
It is incorrect to suggest that I was tutored to state my age less than I stated before the Magistrate, in my statement Exh. D.B. I have female issue of 9 months from my husband. My paper time was from 8-00 to 11-00 a.m. It is incorrect to suggest that I stated before the Magistrate m my statement Exh D.B. That when I was returning from the Examination Hall, the present occurrence took place. My statement before this Court is that the occurrence took place when I was going to take my examination. It is further incorrect that I stated before the Magistrate in Exh. D.B. That when I was returning with my father from the Examination Hall, a friend of my father met him on our way who became busy with him for talking and I advanced ahead of him. I do not know the friend of my father. I did not state the name of Bodha as one of the accused persons besides Yousaf and Ashraf present accused persons in my statement Exh. D.B. (Confronted it is so mentioned) I do not know the name of the driver of the pick-up, whereby I was,, abducted by the present accused persons.
Nor did I note the number of that pick-up. Despite my alarm none other was attracted to the spot except my father who also came thereafter. It is incorrect to suggest that all the prosecution story is concocted and fabricated one. It is correct that I was kept for the three months by the accused persons in a rented house, as I have already stated. However, it is incorrect that I had been mixing up freely with the neighbours and that I did not disclose the present occurrence to any of them. It is incorrect to suggest that I had gone with a friend of mine from the school on my own accord and that I returned to my home myself and that none of the present accused persons had either abducted me or had subjected me to Zina. It is incorrect to suggest that on 14-6-1987, when I appeared before the Investigating Officer, I made a statement to this effect that I had myself gone to my relatives and that I returned to my home myself or that nobody had abducted me. It is incorrect to suggest that before I appeared for making my statement under section 164, Cr.P.C. I was tutored,, by my parents as also by the police to make a statement against the present accused persons. It is incorrect to suggest that before I made my statement under section 164, Cr.P.C. Or that before I was got medically examined on 18-6-1987, 1 remained with Inayat my husband, in my house and he co-habited with me during this period, volunteers that about one month of my statement under section 164, Cr.P.C. I was married with Inayat, my husband. It is further incorrect to suggest that before I was medically examined or before my statement under section 164, Cr.P.C. I in fact was married with Inayat, my husband and not one month thereafter, due to this reason that I might not again elope with some one as my father suspected me to be of such character. It is also incorrect to suggest that my father had a dispute with Yousaf Masih accused over the vacation of a shop in his possession belonging to my father or that as I myself had gone away, my father falsely involved the present accused persons in this case'.
8. The last witness is Investigating Officer Awon Muhammad Shah (P.W.9). This witness has stated that on 28-4-1987 he had recorded the complaint (Exh. P.A.), which was read over to complainant and was thumb-marked by the complainant in token of its correctness. He then sent this complaint to the police station for registration of formal F.I.R. (Exh.PA./1). He proceeds on to state that he recovered Mst. Venus Bano abductee from Mirpur and prepared a site plan of the recovery of the abductee (Exh. P.E.). On 17-6-1987 he produced her before Ilaqa Magistrate for recording her statement under section 164, Cr.P.C. And on 18-6-1987 he got her medically examined where swabs from her vaginal canal were taken which were sent for chemical examination. On 15-7-1987 he arrested Ashraf Masih and on 15-9-1987 he arrested Yousaf Masih. This witness has frankly admitted in his cross-examination that `the complainant also nominated Sherin Younas, Sohawi and Barkat for the present occurrence alongwith the present accused persons. During the investigation, the former four persons were found innocent'. When he was questioned about the recovery he replied that `when I recovered Mst. Venus Bano from Mirpur Azad Kashmir from a lonely place, only one person namely Shabir Abroad or Sher Ali was joined in the recovery proceedings but none else. I did not prepare any recovery memo. Of the abductee. It is incorrect to suggest that all the recovery proceedings of the abductee are bogus'. Then comes the most important part of his statement when he says that `Fatal Masih complainant, the father of Venus abductee had identified her at the time of her. Recovery who had accompanied me to Mirpur Azad Kashmir. It is incorrect to suggest that Fazal Masih, complainant did not accompany me to Mirpur Azad Kashmir when I recovered Mst. Venus from Mirpur'. He denied the suggestion that he did not cite Mst. Venus in the calendar of witnesses because she had flatly refused that she was ever abducted by the accused and left her house with her own accord and had come back herself. He also denied the suggestion that he had deliberately refrained from showing her name in the calendar of witnesses or excluding her statement under section 164, Cr.P.C. Or supplying of statement to the accused she was not willing to support the prosecution case. He further denied the suggestion that the delay in producing her before a Magistrate for recording her statement under section 164, Cr.P.C. Was caused because she was constantly put under pressure to make allegations against the accused.
9. Another important feature of the case is that initially the investigation started against four other persons namely Sherin, Younas, Sohawi and Barkat, but as disclosed by the Investigating Officer in his cross-examination they were dropped at a later stage because they were found to be innocent by the Inspector It remains, however, unclear why these four persons were initially associated with the enquiry if the case against the two accused was as certain as it is made out in the statements of only two prosecution witnesses of the occurrence Fazal Masih and Indar Masih.
10. We have carefullv read the statements of the three main witnesses in the case namely P.W.5 Fatal Masih, P.W.6 Indar Masih and P.W.7 Mst. Venus Bano and have a feeling that abduction of the girl from the bus stand is not proved. Two contradictory statements on this point have been mentioned above. While the father Fazal Masih and the other witness state that the time was morning hours 7-00 or 8-00 a.m. When the girl was going to appear in her paper in the Matriculation examination the girl her sell in her statement under section 164, Cr.P.C. Has clearly stated that the incident occurred while she was returning from the examination hall after giving her paper. This is not a minor contradiction. This goes to the root of the case and completely demolishes the story that the two accused/appellants had abducted her on the morning of 16-3- 1987 from the bus stand.
11. Coming to the story of her restoration an recovery it may be reiterated that there are two versions. First that she was recovered from Mirpur Azad Kashmir and the other that she voluntarily came over from somewhere and after remaining with the parents for some time was taken to the Magistrate and for medical examination. It is also to be kept in mind that even if the story of her recovery from Mirpur Azad Kashmir is accepted, it is admitted position that none of the accused was there. No evidence has been produced to show whether her stay in the house at Mirpur was arranged,, by Yousaf Masih or Ashraf Masih. Neither the owner of the premises nor any document showing payment has been produced nor any other member of the locality, who must have seen them during the period of their stay, has been produced. Further, the fact that Awon Muhammad Shah while going from Lahore had taken Fazal Masih alongwith him to Mirpur for the purposes of identification of the abductee. To put the story in his own words he says `Fatal Masih, complainant father of Venus abductee had identified her at the time of her recovery who had accompanied me to Mirpur, Azad Kashmir. It is incorrect to suggest that Fazal Masih, complainant did not accompany me to Mirpur Azad Kashmir when I recovered Mst. Venus from Mirpur'. But this assertion,, is denied by Fazal Masih in his statement in Court. He clearly stated that `after the occurrence about three months, my daughter was recovered from Mirpur, Azad Kashmir and was recovered by Awon Muhammad Shah, Thanedar. I was not with him. However, my son Sardar Masih was with the police'.
12. The above discussion would show that even on the point of recovery the two main witnesses of the recovery namely Fazal Masih and Awon Muhammad Shah differ and on the top of it admittedly accused Yousaf Masih was not present at the time of alleged recovery. Further perusal of the evidence would show that the only witness of abduction Indar Masih is close relation of the complainant. Parveen sister of Indar Masih is the were of Sardar Masih son of Fazal Masih.
13. In view of the meagre evidence and glaring contradictions it is not safe to convict the appellant.
In our opinion neither any case of abduction is proved against the two accused nor there is any evidence of Zina against appellant Yousaf Masih. The appeal is, therefore, allowed, his conviction and sentences are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case. Consequently the notice for enhancement of sentence of whipping is discharged.