' This appeal is directed against the judgment, dated 27-10-1991 passed by the learned Additional Sessions Judge, Faisalabad Camp at Samundri, whereby appellants Abbas, Bashir and Sharif were convicted for the offence under section 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to suffer R.I. For four years, 15 stripes and fine of Rs,5,000 in default to suffer R.I. For six months with benefit of section 382-B, Cr.P.C.
2. The facts from the evidence emerge as under:-- ' Appellant Abbas was married with Mst. Ramzan Bibi on 13-8-1985. The spouses could not lead happy life. Thus Mst. Ramzan Bibi filed a civil suit for dissolution of marriage before the Family Court, Samundri. However, she succeeded in getting ex parte decree on 15-12-1985. Appellant Abbas moved the Court for setting aside ex parte decree and he succeeded in getting it set aside on 16- 3-1986. Appellant Abbas, however, also filed civil suit for restitution of conjugal rights against Mst.
Ramzan Bibi on 8-4-1986 before the same Court. It is case of the prosecution that on 11-5-1986 when Mst. Ramzan Bibi alongwith P.W.1 Ali Ahmad, P.W.2 Ali Akbar, P.W.3 Mst. Nasim, P.W.5 Mst. Noor Bakhat and others were waiting at bus stand Sadanwala for going to Court, appellants Abbas, Bashir, Sharif and others forcibly abducted her. Hence F.I.R. For offence under section 16 of the Ordinance was registered at Police Station Samundri on the same day by Ali Ahmad. Mst. Ramzan Bibi was recovered and the appellants were arrested. After usual investigation they were challaned before the Court. Charge under sections 16 and 10(3) of the Ordinance was framed against them whereto they did not plead guilty and claimed trial.
3. The prosecution, therefore, examined:- ' P.W.1 Ali Ahmad, brother-in-law of Mst. Ramzan Bibi, eye-witness. P.W.2 Ali Akbar, brother of Ali Ahmad, eye-witness. P,W.3 Mst. Nasim sister of Mst. Ramzan Bibi, eye-witness. P.W.4 Mst. Ramzan Bibi, the victim.
' P.W.5 Mst. Noor Bakhat, mother of Mst. Ramzan Bibi.
' P.W.6 Abbas Ali, a contractor in whose presence Mst. Ramzan Bibi was recovered from Abbas and Ishaque.
' P.W.7 Ghulam Muhammad, in whose presence Mst. Ramzan Bibi was recovered from Abbas and Ishaque.
' P.W.8 Ghulam Haider, S.I., the Investigating Officer.
' P.W.9 Mrs. Khalida Nazir Chatha, W.M.O., who examined Mst. Ramzan Bibi.
' P.W.10 Muhammad Aslam, H.C. Who recorded formal F.I.R. On the basis of statement of Ali Ahmad, complainant.
' P.W.11 Muhammad Anwar, Inspector/S.H.O. Who partly investigated the case.
' In their statements recorded under section 342, Cr.P.C. The appellants denied the allegation.
However, they neither examined themselves on oath nor produced any witness in defence. The learned Additional Sessions Judge did not find them guilty for the offence under section 10(3) of the Ordinance and acquitted them of the charge but convicted them for offence under section 16 of the Ordinance and sentenced them as mentioned hereinabove. Hence this appeal.
4. Mr. Mubashir Iqbal Alvi, Advocate, appeared for the appellants and Mr. Muhammad Akhtar, Additional Advocate-General, with Malik Khuda Bakhsh Khokhar, Advocate appeared for the State.
5. At the very outset the learned counsel for the appellants submitted that at the time when incident had taken place, Mst. Ramzan Bibi was legally-wedded wife of Abbas appellant. Thus, no offence under section 16 or 10(3) of the Ordinance could be registered against him. Besides, the other two appellants are cousins of Abbas appellant. Against them also no offence under sections 16 could be made out. At the most it could be offence under sections 342 and 344, P.P.C. For wrongful confinement.
6. There seems to be weight in the contention raised by the learned counsel for the appellants. The learned State counsel candidly concedes to such proposition. I too agree with the submission made by the learned counsel for the appellants and the State. Really, it is strange that how offence under section 16 of the Ordinance could be made out against Abbas and his two cousins on the day of incident when Mst. Ramzan Mai was wife of appellant Abbas. The learned counsel for the appellants has, therefore, urged that the conviction of the appellants under section 16 of the Ordinance is not sustainable. The learned counsel for the State concedes to such legal position and admits that the conviction of the appellants under this section is not maintainable. In such view of the fact, I am constrained to accept the appeal, set aside the conviction and sentences of the appellants awarded to them by the learned Additional Sessions Judge, Faisalabad on 27-10- 1991. They are acquitted of the case. They be set at liberty if not required in any other case.