Appellant, Manzoor Hussain and Mst. Khatoon, have been convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance).
Appellant, Manzoor Hussain, has been sentenced to undergo R.I. For five years with fifteen stripes and fine of Rs. Five thousand, in default to suffer R.I. For six months more. Mst. Khatoon, was sentenced to undergo R.I. For four years with five stripes and fine of Rs. Two thousand, in default to suffer R.I. For two months more. Manzoor Hussain, has filed this appeal.
2. P.W.1 Amir Hussain is complainant. He has stated that Mst. Khatoon is his wife and they have three children. He went for work and. Came back at 4-00 p.m. And found his wife missing alongwith three children. He was informed that she went out of house on pretext of making water and did not return. He went in search and was informed by Bakhsha and Sardara that they saw her getting into a car with Manzoor Hussain, Hayat, Allah Ditta and Sheroo. He has stated that he went to police station and lodged report after one month of occurrence when Manzoor Hussain, accused refused to return his wife. He has stated in cross-examination that he married Mst. Khatoon about 25/30 years back. P.W.2 Bakhsha, has stated that about two years back at about 4-00 p.m. He and Sardara were present at Chowk of Mohallah Ghafoorabad. They saw Mst. Khatoon with three children. He also saw a car standing at a distance of 1/1-2 Killas where 4 persons were present. He recognized only Manzoor. Mst. Khatoon boarded the car with accused. In the evening complainant, Amir Hussain, met them and they informed him. P.W.3 Tajammal Khan, A.S.I. Has stated that on 20- 11-1987 he was posted A.S.I. Police Station City Chiniot when he recorded complaint of Amir Hussain (Exh.P.A.). He sent complaint to police station for registration of case and formal F.I.R. (Exh.PA./1) was drafted by Sarfraz Khan, A.S.I. He identified his handwriting and signatures. He prepared site plan and recorded statements of witnesses. He arrested Manzoor Hussain and Mst. Khatoon, on 19-12- 1987 and on completion of investigation submitted challan. P.W.4 Dr. Muhammad Latif Malik, examined Manzoor Hussain and found him fit to perform sexual intercourse. P.W.5 Sarfraz Khan, A.S.I. Has stated that he registered formal F.I.R. (Exh.P.A./1). P.W.6 Lady Dr. Tahira Shamim, has stated that she examined Mst. Khatoon and found her hymen torn, having old tear, the vagina admitted two fingers easily and P.V. Uterus 20 weeks size, cervix closed. In her opinion she was subjected to sexual intercourse and was about 20 weeks pregnant. She produced carbon copy of medico-legal examination. She has stated that the age given in the certificate according to the statement of Mst.
Khatoon and from her appearance as well was 25 years. She has stated that swabs were not taken.
3. Appellant in his statement under section 342, Cr.P.C. Has denied the allegations and stated that case has been filed due to enmity. Mst. Khatoon's sister is married with him and Mst. Khatoon was illtreated by her previous husband, therefore, she filed a suit for dissolution of marriage in 1980 at Sargodha. He being her sister's husband helped Mst. Khatoon. Mst. Khatoon again left her husband's house alone as she apprehended her murder at the hand of her husband. He has stated that Amir Hussain, complainant involved him due to previous enmity. He has not given statement on oath. Mst. Khatoon in her statement under section 342, Cr.P.C. Has stated that she is innocent and in fact she with consent of her father filed suit for dissolution of marriage against complainant.
She has stated that Manzoor Hussain is husband of her real sister and supported her and gave money for litigation. The complainant intended to kill her therefore, she escaped with great difficulty to the house of her parents and she was arrested from `Pull No.11'.
4. I have heard Mr. Ghaus Muhammad Chaudhry, counsel for the appellant and Mr. Faizur Rehman, counsel for the State.
5. Complainant, Amir Hussain is not eye-witness. He was informed by his brother, Farid who has not been examined in this case. The complainant in his statement also implicated Hayat, Allah Ditta and Sheroo. They were found innocent. His evidence has been contradicted by P.W.2 Bakhsha. He stated that he only recognised accused Manzoor Hussain while others were not known to him. The vaginal swa bs were not taken. The occurrence took place on 18-10-1987. The report was lodged on 20-11-1987 i.e. After about one month. The delay has not been explained. The appellants were exonerated from the charge of committing Zina. They have only been convicted under section 16 of the Ordinance. There is no convincing evidence that Mst. Khatoon was taken away or enticed with intention that she may be subjected to sexual intercourse with appellant, Manzoor Hussain. There is only evidence of Bakhsha that he saw them going with accused. Fareed father of complainant has not been examined. This evidence is not sufficient to sustain conviction for such heinous offence. It has come in the evidence of lady doctor that Mst. Khatoon was found pregnant but in spite of that there is no evidence that she had cohabited with appellant and they have been acquitted for the offence of Zina.
6. For the reasons stated above I am of the view that the prosecution has failed to establish the charge under section 16 of the Ordinance against the appellant. The appeal is allowed. The appellant is acquitted of the charge. His conviction and sentence stand cancelled.
7. Mr. Ghaus Muhammad Chaudhry, counsel for the appellant has informed that Mst. Khatoon who was also convicted by the same judgement, has served out her sentence and since been released.
I have acquitted Manzoor' Ahmad, the case of Mst. Khatoon is identical, therefore, in view of cases reported in PLD 1949 Lah. 179, 1969 P Cr. L J 446 and PLD 1967 SC 356 the benefit of appeal of Manzoor Hussain co-accused could be extended to Mst. Khatoon as evidence against both is identical. Therefore, Mst. Khatoon who did not file appeal is also acquitted.