' This appeal is directed against the judgment dated 23-9-1992 passed by the learned 1st Additional Sessions Judge, Karachi Central, whereby the appellant was convicted for offence under sections 10(3) and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced as under:--
(i) Under section 10(3) of the Ordinance to suffer R.I. For six years and ten stripes.
(ii) Under section 11 of the Ordinance to suffer R.I. For six years, ten stripes and fine of Rs,5,000, in default to undergo R.I. For three months more.
' The sentences were ordered to run concurrently with benefit under section 382-B, Cr.P.C.
2. The case is based on the complaint lodged by P.W.1 Muhammad Yapob with Superintendent of Police, Liaqatabad Division, Karachi, on 12-7-1982 in the words as under:-- "The Superintendent of Police Liaqatabad Division, Karachi.
' Subject: Complaint against Nabi Ahmad son of Tajul Malook, resident of 499, Block I, Liaqatabad, Near Post Office, Karachi.
' Sir, ' It is humbly submitted as under:--
(1) That I am a law-abiding citizen and am a businessman and resident at Plot No,18, Block No,7, Azizabad, F.B. Area, Karachi.
(2) That Azra Parveen aged about 18/19 years is my daughter. On 17-6-1982 in the afternoon she was not available at the residence.
(3) That I tried to search her at Karachi as well as in Punjab but could not trace her out
(4) That yesterday I got an information through reliable sources that my daughter was abducted/kidnapped by one Nabi Ahmad son of Tajul Malook, resident of 499 Block I, Near Post Office, Liaqatabad, Karachi, with mala fide intentions and he has kept her under wrongful detention.
The life of my daughter is also in danger. It is therefore, requested that you will be pleased to take legal action against the culprit and recover the girl from his custody and to hand Over her to me.
' Thanking you, ' Karachi: dated 12-7-1982. ' (Sd.) Muhammad Yaqoob ' son of Muhammad Parvez, resident of Plot No,18, Block 7, Azizabad F.B. Area, Karachi.
3. In his complaint Muhammad Yaqoob disclosed that his daughter had been abducted by one Nabi Ahmad. During the investigation Nabi Ahmad was found to be innocent. However, later on the appellant and Mst. Azra Parveen, the abductee, were arrested from a house at Hyderabad. After usual investigation the appellant was challaned for offence under sections 11 and 10(3) of the Ordinance for trial before the Court of the learned 1st Additional Sessions Judge, Karachi Central.
The appellant did not plead guilty to the charge under sections 11 and 10(3) of the Ordinance and claimed trial. The prosecution, therefore, examined P.W.1 Muhammad Yaqoob, father of abductee Mst. Azra Parveen, P.W.2 Dr. Qaiser Rasool, who determined the age of abductee Mst. Azra Parveen as 19 years, P.W.3 Mst. Azra Parveen, the abductee/prosecutrix, P.W.4 Muhammad Mustafa, the witness of recovery of Mst. Azra Parveen from the possession of the appellant at Hyderabad, P.W.5 Ibrahim, recovery witness regarding abductee and wagon, P.W.6 Allah Yar, S.I. Investigating Officer, and P.W.7 Dr. Irfan Qureshi, who examined the appellant and found him potent for performing sexual act.
4. In his statement recorded under section 342, Cr.P.C. The appellant claimed that Mst. Azra Parveen was his legally-wedded wife. His answer to question No,12 reads as under:-- "Yes Sir. Azra Parveen had herself desired to marry with me in year 1976. On 12-12-1976 she had come to me of her own and desired to perform Nikah with me. Accordingly, Nikah was performed.
Such affidavit given by her and Nikah was performed by Kazi Muhammad Yousuf in presence of Mubashir Hussain and Khadim Hussain. She remained with me for 8-10 days. Thereafter, her parents contacted her, hence she went away with them. I had filed a case for Restitution of Conjugal Rights. It is thereafter that this case was filed against me. Azra Parveen was pressurised by her parents to depose against me and to back out from the covenant of the marriage and to resile from the affidavit given by her in my favour."
' The appellant in his statement recorded under section 340(2), Cr.P.C. Has deposed as under:--- "Azra Parveen had herself desired to marry with me in the year 1976.
' On 12-12-1976 she had come to me of her own and had desired to perform Nikah with me.
Accordingly, Nikah was performed. Such affidavit given by her and Nikah was performed by Kazi Muhammad Yousuf in presence of Mubashir Hussain and Khadim Hussain. She remained with me for 8-10 days. Thereafter her parents contacted her, hence she went away with them. .I had filed a case for Restitution of Conjugal Rights. It is thereafter that this case was filed against me. Azra Parveen was pressurised by her parents to depose against me and to back out from the covenant of the marriage and to resile from the affidavit given by her in my favour."
' The appellant also examined D.W.1 Muhammad Siddiq, who identified Mst. Azra Parveen before Civil Judge/Magistrate First Class, Hyderabad, at the time of swearing affidavit, D.W.2 Hakim Qutab Uddin, who registered Nikahnama of the abductee with the appellant on 8-12-1976. D.W.3 Qazi Muhammad Hashmi, who performed Nikah of the appellant as well as Mst. Azra Parveen on 8-12- 1976 and D.W.4 Mirza Mubashir Ahmad, a witness of Nikah. However, the learned trial Judge did not believe the version of the appellant and while relying on the prosecution evidence convicted the appellant for the offence as mentioned hereinabove. Hence this appeal.
5. I have heard Sardar Muhammad Ishaque, Advocate, for the appellant, Mr. Niamat Ali Randhawa, Advocate, for the complainant and Mr. Zaheer Ahmad, Qureshi, Advocate, for the State.
6. With the assistance of the learned counsel for the parties I have gone through the evidence produced by the prosecution in support of its case, the statements of the appellant and the evidence of defence witnesses produced by the appellant. In his complaint P.W.1 Muhammad Yaqoob has shown age of abductee Mst. Azra Parveen as 18/19 years P.W.2 Dr. Qaiser Rasool has affirmed the version of complainant regarding the age of the abductee as 19 years. Obviously Mst.
Azra Parveen on the date of incident was of the age of 18 or 19 years. Now there are two versions advanced before the Court. One by complainant Muhammad Yaqoob supported with evidence of P.W.3 Mst. Azra Parveen that she Was abducted by the appellant and subjected to forcible sexual intercourse. The other version is of the appellant that Mst. Azra Parveen had married with him of her own accord. No doubt the prosecution and the defence have supported their own cases on the evidence produced before the Court. There are two theories before the Court in respect of the incident. This Court in its criminal jurisdiction is not competent to determine the validity of the marriage between the appellant and Mst. Azra Parveen. It was for the parties to have established the same before the. Civil Court. However, the material adduced by the appellant in his defence is sufficient to create a doubt in my mind regarding the involvement of the appellant with the offence. Thus, extending benefit of doubt in his favour the appeal of the appellant is accepted, his conviction and sentences passed by the learned 1st Additional Sessions Judge, Karachi, Central, on 23-9-1992 are set aside and he is acquitted of the charge. He be set at liberty forthwith if not required in any other case.
7. However, the acquittal of the appellant would not establish the stand of the appellant regarding his marriage with Mst. Azra Parveen. The parties may establish their right before the competent forum. The observations made by this Court would not come in any way in the way of the parties.
Consequently, the Criminal Suo Motu No,18/K of 1992 also stands disposed of accordingly.