TANZIL-UR-RAHAMAN, C.J.--- This criminal appeal arises out of judgment dated 9-9-1.991 passed by the Court of Vth Additional Sessions fudge, Hyderabad, in Session's Case No.312 of 1990 (The State v. Akbar Hussain and others whereby he convicted the appellant, Akbar Hussain, under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 (hereinafter referred to as the said Ordinance) and awarded life imprisonment under section 11 of the said Ordinance with whipping numbering twenty stripes and a fine of Rs.5,000, in default whereof to suffer further imprisonment for three years. For the commission of offence under section 10(3) of the said Ordinance, he awarded ten years' R.I., and whipping numbering thirty stripes. The learned trial Judge, however, acquitted the remaining three accused of the charge.
2. Brief facts of the prosecution case are that on 24th of June, 1990 during 1330 and 1500 hours Muhammad Khalil, father of the prosecutrix, had gone out of his house to offer prayers leaving his daughter Mst. Zubeda aged about 14 years in the house and on return he found her missing. He went out to search her and on the way Muhammad Hussain, Haji Abdul Rehman and Haji Yousuf met and informed him that he had seen Mst. Zubeda going alongwith Akbar Hussain alias Bundoo, the appellant, in a rickshaw. He kept on searching them and finally on 5-7-1990 he lodged the F.I.R.
(Exh.12/A). On the same day, S.H.O. Muhammad Farooq arrested the appellant from General Bus Stop, Hali Road and secured Mst. Zubeda, who was Produced before the A.C.M. For recording her statement under section 164, Cr.P.C. The A.C.M. Referred her to hospital for medical examination.
Other accused namely, Bashir Ahmad, Abdul Jabbar and Muhammad Siddique were arrested subsequently. Meanwhile, the mother of the appellant Akbar Hussain appeared at the police station and produced affidavit of Mst. Zubeda and Nikahnama, which was secured under Mashirnama (Exh.18/A). After completing the formalities, the four accused including the appellant were challaned and sent up for trial.
3. The prosecution in all examined seven witnesses, P.W.1 Dr. Tasleem --Junejo, examined Mst.
Zubeda, the prosecutrix, and gave his medical rep: and also examined herself in Court. P.W.2 Muhammad Khalil is the father the prosecutrix and complainant. P.W.3 Mst. Zubeda is the Prosecutrix who was allegedly abducted and raped. P.W.4 Haji Muhammad Yousuf, an eye, witness, who saw Akbar Hussain, the appellant, taking away Mst, Zubeda in a rickshaw. P.W.5 Abdullah is a Mashir of arrest of the appellant and recovery of Mst. Zubeda from a room inside his house. He produced such Mashirnama (Exh.15/A). P.W.6 Muhammad Masood Ali, Nikahkhawan, who allegedly performed the Nikah of Akbar Hussain with Zubeda, the appellant and the prosecutrix respectively.
P.W.7 Muhammad Farooq is an A.S.I. Police Station Hyderabad. He also acted as Investigating Officer.
4. We have heard Mr. Mehrab Gul, a partner of Gul Zaman and company Advocates and holding brief for Mr. Gul Zaman Advocate and Messrs Abdul Ghafoor Mangi, Additional Advocate-General, Sindh with Mr. Habibur Rasheed, Advocate.
5. It is contended that Mst. Zubeda had gone with the appellant by her consent and free will, entered into a marriage in the Court premises, They are husband and wife and have committed no offence. In fact Akbar Hussain, the appellant, has taken a plea that Mst. Zubeda had come to him and said the she was being married somewhere else and they came to the Court where she swore an affidavit and the Nikah was performed with her. The appellant's statement can oath under section 340(2), Cr.P.C. Is as under:-- "I know Khalil and Mst. Zubeda for last 5/6 years and used to visit their house. Khalil had offered to marry Mst. Zubeda to me and he had also taken money from me. On 27th,of a month last year I was standing in Unit No.7 and Mst. Zubeda came and said that she was being married somewhere else and I should go to the Court where she would marry me. We came to Court where Ghori Sahib prepared her affidavit which she sworn before the Magistrate. Then a Qazi came to the Court premises and solemnized our Nikah. I then left Mst. Zubeda at the house of her father Khalil. Again on the 6th of same month she came to me at Unit No.7 alongwith her clothes and I took her to my sister's house at Paretabad, Hyderabad. Thereafter, elder sister of Mst. Zubeda and Khalil came and demanded her to be returned and that they would settle the affair whereupon Chaudhry Tufail and my brother-in-law handed over Mst. Zubeda to them. They gave beating to her. On the third day of Eid I went to P.S. To lodge report but the incharge detained me and involved in this case. My mother produced original affidavit of Zubeda and our Nikahnama which I see on the record of this case. I and Mst. Zubeda got our photographs taking at Unit No.7 Hyderabad one of which is also on record of this case. I have been involved on false allegations."
The submission is belied by Mst. Zubeda herself who deposed that her father had gone to offer prayer on a Friday when she was alone in the house. The appellant. Akbar Hussain, came with a knife, parked a rickshaw at the gate of her house and put something on her face which made her senseless and he took her away. He detained her 2/3 days and committed Zina-bil-Jabr her father brought police and got her recovered. She denied to have sworn the affidavit (Exh.13/B) or that she contracted Nikah with the appellant but she admitted the photograph (Exh.13/D). The fact, however, stands admitted by the appellant himself that Mst. Zubeda left the house on 27-6-1990: The stamp paper on which the affidavit appears to have typed was produced on 26-6-1990, It appears that everything was pre-planned. It also stands admitted as deposed by Haji Yousuf and Masood Ali and Mst. Zubeda left in a rickshaw at the time of Juma prayer alongwith Akbar Hussain, the appellant. There is contradiction in respect of the date, however, the witnesses are unanimous that it was Zohar prayer. The date as such is not the same, however, it prints no adverse image.
It may be observed that in sex cases particularly of the type in hand, parties, specially the male and female involved therein after their capture press true facts and narrate concocted stories to show their, his or her innocence. It thus becomes onerous duty of the Court to sift corn from chaff to at just conclusions to administer justice.
In the instant case the appellant Akbar Hussain and prosecutrix Mst, Zubeda are indeed of young age. Akbar Hussain is of 26 years age whereas Mst. Zubeda is of 18 years. Admittedly, they lived near each other in neighbourhood. Appellant claims that he used to visit the prosecutrix's house as her father had offered her hand for marriage to him. This fact has been denied by Muhammad Khalil, father of Mst. Zubeda, and even by her. Mst. Zubeda admits that appellant was known to her as he resided in the same Mohalla. However, in cross-examination she has admitted that appellant used to visit her house. Besieds there is her photo with appellant. Hence it is not case of mere acquaintance of the prosecutrix with the appellant but something much more than that to be termed as close intimacy which in fact resulted in the present episode.
8. In such situation the prosecution evidence and defence stand has to be minutely assessed and evaluated likewise, to arrive at right conclusions. Before us on one side is the deposition of Mst.
Zubeda, and her 164, Cr.P.C., statement. On the other side 340(2), Cr.P.C. Statement of the appellant, affidavit of Mst. Zubeda, Nikahnama and statement of P.W.6 Muhammad Masood Ali. A mere reading of 164, Cr.P.C. Statement and her evidence recorded in the Court reflects that she had eloped with the appellant with her own sweet will and developed sexual closeness with him. 340(2), Cr.P.C., statement of the appellant confirms our view.
9. From the facts and circumstances as discussed in the judgment, we are not convinced that it was a case of abduction or kidnapping for the purpose of illicit intercourse. But, it seems to be a case of enticing away Mst. Zubeda for the purpose of intercourse.
10. The crucial point thus arises whether sexual closeness of the appellant with prosecutrix was legal or illicit one? Appellant has canvassed that on 27-6-1990 his Nikah with prosecutrix was arranged by Mr. Ghori and solemnized by one Kazi within premises of a Court. To support his stand the appellant examined himself and produced affidavit, dated 26-6-1990 of the prosecutrix, Nikahnama dated 27-6-1990 and his photo with her. It is alleged by the prosecution that Mst.
Zubeda was enticed away on 24-6-1990. Whatever, the case may be, admittedly she had left house of her father on one of the above said dates. However, the day was Jumma and Zohar time.
According to the appellant after solemnization of marriage with prosecutrix on 27-6-1990 he left her at house of her father. Again on the 6th of same month she came to him at Unit No.7 alongwith her clothes and he took her to his sister's house at Paretabad Hyderabad and then to elder sister of Mst. Zubeda where Muhammad Khalil came and pressed her return. On third day of Eid he went to police station to lodge report but incharge detained him and involved him in the case.
11. Prosecution insisted that on 24-6-1990 the appellant enticed away Mst. Zubeda and both of them were not traceable till 5-7-1990 when they were apprehended. In such situation evidence of the prosecutrix and defence has to be weighed in juxtaposition. 340(2), Cr.P.C. Statement of the appellant has already been reproduced. Evidence of P.W.3 Mst. Zubeda is as under:- "About 8/9 months ago on Friday my father had gone to offer Juma prayer and, I was alone in the house. At that time Akbar, who used to live in my Mohalla, came with a knife and parked a rickshaw at the gate of my house. He put something on my face, and thereafter I lost senses and he took me away in the rickshaw. There were 2/3 persons present in the place where he had taken me. He detained me there for 2/3 days and one day, he committed Zina-bil-Jabr with me. My father brought police, and police recovered me. At that time Akbar Hussain threatened me that he would murder me if I give statement against him. Akbar Hussain accused present in Court is same. The other two accused who were with Akbar are also same. Note (she pointed out Saddiq and Bashir Ahmad).
Police recorded my statement. I was referred for medical examination and the lady doctor examined me. My statement was also recorded by a Magistrate which I produce as Exh.13/A. It bears my R.T.I."
Evidence of P.W.5 Abdullah is:-- "I know the complainant Khalil and his daughter Mst. Zubeda. This incident took, place H/9 months ago I had gone with police to a house from where police arrested accused Akbar and recovered'
Zubeda from a room inside the house. Muhammad Hussain and many other persons were also present at the time of raid.' I produce such Mashirnama as Exh.15/A. It bears my L.T.I. Akbar accused and Mst Zubeda present in Court are same."
Evidence of P.W.7 Muhammad Farooq is:-- "On 5-7-1990 I was posted as S.H.O. B/Station Latifabad Hyderabad when on that day, Muhammad Khalil came and lodged the report, which I recorded at his verbatim, read over to me and obtained his signature. I see F.I.R. As Exh.12/A, which is same correct and bears my signature. I recorded statements of P.Ws. Muhammad Hussain and Haji Muhammad Yousuf. During investigation when I reached Bus stop Hali Road I found Mst. Zubeda and Akbar Hussain standing there. I arrested Akbar Hussain and secured Mst. Zubeda in presence of Mashirs Abdullah and Abdul Rehman and prepared memo as Exh.15/A, which is same, correct and bears my signature. I recorded statement of Mst. Zubeda. On 7-7-1990 I produced Mst. Zubeda before the ACM, Latifabad, for recording her statement under section 164, Cr.P.C. On the direction of ACRI, I produced her before Medical Officer for her examination and certificate. In her statement under section 164, Cr.P.C. Mst. Zubeda disclosed names of Muhammad Farooq, Shamshad, and Abdul Waheed as accomplices of Akbar.
She also disclosed name of Abdul Jabbar. On 8-7-1990, mother of accused Akbar Hussain produced Nikahnama and affidavit, which I secured under the Mashirnama.1 produced Mashirnama its Exh.18/A, which is same, correct and bears city signature. On 10-7-1990, I arrested accused Bashir and prepared memo which I produce as Exh.18/B. It bears my signature. Accused Bashir disclosed name of Muhammad Sadiq as an associate. I recorded statement of Nikahkhuawan Syed Muhammad Masood Ali Rizwi. I then submitted challan before the Court. On 16-11-1990, F arrested accused Sadiq and prepared Mashirnama, which I produce as Exh.18/C. On 20-11-1990 I arrested accused Abdul Jabbar and prepared Mashirnama which I produce as Exh.18/D. I then submitted supplementary challan. Accused present in Court are same:'
12. The above said evidence of the prosecution witnesses has not been seriously challenged by the defence. It thus has been accepted as true. The version of the appellant that on same day i.e. 27- 6-1990 he left the prosecutrix at house of her father seems to be false one. Besides it is proved that on 5th of July, 1990, the appellant and the prosecutrix were apprehended hence going of prosecutrix to the appellant on 6th of same month and subsequent story of keeping prosecutrix with his sister and her sister, her restoration to her father, appellant's arrest on Eid day seems not only to be totally false but absurd one also. No reliance thus can be placed thereon. We as such feel no hesitation in discarding it. Affidavit is written in English. It has been merely brought on record. Its contents have not been legally proved. Examining of Advocate Mr. Ghori was a must to prove it. It would have helped the appellant. He did not appear in the witness-box. The affidavit therefore, does not come to the rescue of the appellant. Regarding Nikah, the appellant has neither disclosed name of the Nikahkhuawan nor the attested witnesses in his 340, Cr.P.C., statement. Their names were not even suggested to P.W.3 Zubeda during cross-examination. In his statement appellant has only said that his mother produced the Nikahnama. It was indeed obligation of the appellant to have proved his Nikah with prosecutrix, particularly when she had denied his Nikah with him. However, alleged Nikahkhuawan surprisingly was produced by prosecution as P.W.6. His evidence is:-- "I am Nikahkhuawan of Cantt. Area. On 27-6-1990 I had solemnized Nikah between Akbar Hussain and N1st. Zubeda. One Ghori, who had called me to perform the ceremony had produced photo state copy of affidavit of Zubeda. I see Nikahnama as Exh.13/C., which is the same Nikahnama and bears my signature. I had registered the Nikah under Entry No.741. Muhammad Farooq was Vakeel from the side of Mst. Zubeda and Shamshad Khan and Bashir Ahmad were witnesses of his being Vakeel. Witnesses of Nikah were Abdul Ghafoor and Abdul Waheed."
13. It may be pertinent to observe that evidence of this witness was not recorded in presence of Mst.
Zubeda. The witness even did not utter a single word to say that he solemnized Nikah of the appellant present in the Court with Mst. Zubeda. The appellant was given golden chance to cross- examine this witness to prove his Nikah with prosecutrix but he miserably failed and kept mum and did not cross-examine him. On the contrary this witness in unequivocal terms has said that Ghori who had called him to perform the ceremony had produced photostat copy of affidavit of Mst.
Zubeda. It seems that the witness was influenced by the affidavit and did not observe the legal requirement of a valid Nikah and the things remained in confusion. Thus scanty evidence of Muhammad Masood did not prove valid Nikah of appellant to with the prosecutrix. His evidence as such is of no use at-all. The learned trial Court has thus rightly not relied on it. We too affirm his view.
14. The joint photo of the appellant and the prosecutrix does not carry any date. In his statement recorded under section 340, Cr.P.C. The appellant even did not say that it was taken at the time of Nikah. On the contrary it reflects wooing which may be in early days even. It has thus no relevancy with the Nikah
15. P.W.1 Dr. Tasleem Junejo, who examined the prosecutrix, opined that site is used to sexual intercourse ..., I also examined her for ascertaining her age and found that she was 18 years on the basis of physical examination, radiological investigations and general appearance. He also stated that the hymen was not intact, old laceration seen on posterior and lateral parts of hymen and vagina admitting two fingers easily. In cross-examination, he deposed that `there were no marks of violence on her body or any parts of the body. There were no marks of violence on her breasts and private parts'.
16. The above facts and circumstances establish the case under section 10(2) read with section 16 of the said Ordinance. We are, therefore, inclined to alter the conviction of the appellant from section 10(3) to section 10(2). Of the said Ordinance. Further, the conviction under section 11 is also altered to section 16 of the said Ordinance.
17. The appellant has been sentenced under section 11 of the said Ordinance to suffer life imprisonment, twenty stripes and fine of Rs.5,000 or in default to undergo R.I. For three years, whereas under section 10(3) of the said Ordinance to suffer R.I., for ten years and thirty stripes.
Since, we have altered the conviction, we award to the appellant the sentence to five years' R.I., on each count, which will run concurrently. Since, the learned trial Judge has given benefit of section 382-B Cr.P.C. The same is maintained. The appellant is also awarded sentence, of whipping numbering fifteen stripes under section 10(2) of the said Ordinance and fifteen stripes under section 16 of the said Ordinance.He shall also be liable to pay fine of Rs.5,000 under section 10(2) of the said Ordinance, in default to further undergo R.I., for one year.
18. With the above modification, the appeal is dismissed.
19. It has been disclosed in cross-examination of prosecutrix that appellant had filed suit for restitution of conjugal rights in family Court against the prosecutrix. We have in our discussion made certain remarks regarding the alleged Nikah between the appellant and prosecutrix. Indeed our remarks are of tentative nature to decide the criminal case. It shall not be taken as final evidence for deciding civil rights/obligations of the parties in a Civil Court. The cases of the parties be decided on their own merits and under the law. Our decision shall not prejudice their suit at all.