' MIR HAZAR KHAN KHOSO, J.---This appeal is directed against the judgment dated 2-5-1992 passed by the learned Sessions Judge, Sheikhupura, whereby appellant Tahir Bashir was convicted for offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to suffer imprisonment for life, twenty stripes and fine of Rs,5,000 in default to undergo R.I. For six months more. By the same judgment his co-accused Muhammad Hanif was acquitted.
2. The case is based on the statement made by P.W.1 Yahya Khurshid on 24-4-1991. It reads as under:- {{URDU TEXT}} ' Statement of abductee Mat. Maryam Khurshid was recorded by police on 25-4-1992. On 30-4-1991 her statement under section 164, Cr.P.C. Was also recorded by Magistrate First Class, Sheikhupura.
The appellant and his co-associate Muhammad Hanif were arrested. However, there was no allegation that the abductee had been subjected to sexual intercourse. She was not thus referred to Medical Officer for examination. After usual investigation the appellant and his associate were sent up for trial for offence under section 11 of the Ordinance before the Court. The case came for trial before the Court of the learned Sessions Judge, Sheikhupura, whereby the appellant and his acquitted companion Muhammad Hanif did not plead guilty to the charge. Hence the prosecution in support of its case examined P.W.1 Yahya Khurshid, P.W.2 Maryam Khurshid, P.W.3 Ata Muhammad Niazi, P.W.4 Abdul Sattar and P.W.5 Irshad Khan, A.S.I.
2. In his statement recorded under section 342, Cr.P.C. The appellant in answer to question No,14 stated:-- "As a matter of fact Mst. Maryam Khurshid entered into marriage with me against the will of her parents on 23-4-1991, according to her free consent which annoyed her parents and other relatives who falsely involved me in this case. I will make my detailed statement under section 340, Cr.P.C."
' He took same stand in his statement recorded under section 340(2), Cr.P.C. It reads as under:-- "On 23-4-1993 at about Zohar prayers time, may nikah with Mst. Maryam Khurshid was performed in presence of Shabbir Hussain and Muhammad Sharif by Hafiz Fazal Karim D.W. In the Bethak of Qari Muhammad Amin, adjacent to Eidgah Mosque for a consideration of dower of Rs,10,000 which was handed over to Mst. Maryam Khurshid in the shape of two folden bangles. The nikah was entered in the register of Nikah of Ward No,28, which was duly signed by myself, Mst. Maryam Khurshid, witnesses of the Nikah and Nikah Khawan etc. The nikah was performed with the free consent of Mst. Maryam Khurshid. One of the form of Nikah was handed over to me and one to Mst.
Maryam Khurshid. I had not abducted Mst. Maryam Khurshid, nor she was detained in any room, nor she was forced to sign any document. Mst. Maryam Khurshid is my legally-wedded wife. I have filed a suit for restitution of conjugal rights the certified copy of which is Exh.D.K. The said suit is fixed for 30-10-1991 in the Court of Ch. Karamat Ali, Judge Family Court, Sheikhupura. I had taken the plea before the police that Mst. Maryam Khurshid was my legally-wedded wife and so in this Court. This case has been falsely registered against me as parents of Mst. Maryam Bibi were annoyed of this Nikah. I had also the plea of my legally-wedded wife in the bail application. I am innocent."
' Besides, the appellant examined D.W.1 Qari Muhammad Ameen, D.W.2 Hafiz Fazal Karim, D.W.3 Manzar Saeed, D.W.4 Shabbir Hussain and D.W.5 Masood Asghar Khan in defence. However, the learned Sessions Judge did not believe the defence version of appellant Tahir Bashir and convicted him for the offence under section 11 of the Ordinance and sentenced him for the same as mentioned herein above. The learned Sessions Judge while extending benefit of doubt acquitted his companion Muhammad Hanif against the aforesaid conviction and sentence. The appellant has filed this appeal.
3. We have heard Mr. Muhammad Sharif Chohan, Advocate, for the appellant, Mr. Shafqat Mehmood, Advocate, for the complainant and Ch. Muhammad Ibrahim, Advocate, for the State.
4. At the very outset the learned counsel for the appellant submitted:--
(i) That the entire story advanced by the prosecution is absurd, full of contradictions and no reliance thus can be placed thereon.
(ii) The prosecution has failed to prove the charge under section 11 of the Ordinance against the appellant.
' In suport of his contentions the learned counsel for the appellant relied on PLD 1970 SC 10, 1969 SCM R 777, PLD 1953 FC 93, ' PLD 1958 SC 12, PLD 1967 SC 320, PLD 1977 SC 515 and PLD 1981 FSC 297.
5. The learned counsel for the complainant and the State while controverting the contentions raised by the learned counsel for the appellant submitted that charge under section 11 of the Ordinance has been proved against the appellant. Hence his conviction and sentence recorded by the learned trial Judge be maintained. Reliance was placed on PLD 1984 SC 95, 1983 SCM R 942, 1985 PCr.LJ 110, PLD 1985 SC 357, 1986 SCM R 239, 1986 SCM R 132, 1988 SCMR 685, 1988 SCMR 2008, PLD 1989 SC 744, 1991 SCM R 753-1175, 1992 SCM R 1273 and 1991 P Cr. L J 564.
6. With the assistance of the learned counsel for the parties we have gone through the evidence produced by the prosecution and the defence. It may be pertinent to observe that facts on the record establish that abductee Mst. Maryam Khurshid had disappeared from her house on 23-4- 1991, thereafter she remained with appellant Tahir Bashir and returned to her house on 25-4-1991. It is case of the prosecution that on 23-4-1991 while abductee Mst. Maryam Khurshid after attending college was standing near the gate of college at about 11-30 a.m. Appellant Tahir Bashir alongwith his acquitted co-accused Muhammad Hanif came there and on pretext of giving her lift to her house took her to a house where he manipulated documents regarding Nikah. On that night he tried to have sexual intercourse with her but at the interference of a lady of the house could not succeed. The lady on the contrary facilitated escape of the abductee from the house. On the other hand, it is defence of appellant Tahir Bashir that on 23-4-1991 abductee Mst. Maryam Khurshid entered into marriage with him, but without consent of her parents. In such view of the facts we have to evaluate the evidence produced by the prosecution and the defence to arrive at a correct conclusion. During the course of arguments we had put two questions to the learned counsel for the appellant which he was not able to satisfactorily answer. The first question was, as. To at what time and place Mst. Maryam Khurshid had come to the appellant and then how she left the appellant's house? The learned counsel for the appellant merely insisted that the weakness of defence cannot strengthen the prosecution case. He tried to persuade us that we should not take into consideration the statement of the appellant and his defence witnesses, but we should see as to whether the prosecution had proved the case under section 11 of the Ordinance against the appellant. No doubt it is for the prosecution to establish its case beyond reasonable doubt. The weakness of the defence would in no case strengthen the prosecution case. However, in the instant case there is positive evidence of Mst. Maryam Khurshid stating that on 23-4-1991 at about 11-30 a.m. Appellant Tahir Bashir on the pretext of giving her lift to her house took her and detained her in a room and closed the door from outside. She has further stated that on some blank papers he had obtained her signatures. It is further stated by her that he attempted to commit Zina with her but on her resistance and at the interference of a woman in the house the appellant failed to ach ve his object. She has further stated that in the next morning the same woman helped her to escape. The purpose of initially leaving her house at the relevant time is supported by P.W.1 Yahya Khurshid, her brother. Besides, P.W.4 Abdul Sattar has stated that on that day he saw that appellant Tahir Bashir was taking Mst. Maryam Khurshid. Without having any proper explanation from the appellant in respect of the same in his statements recorded under sections 342 and 340(2), Cr.P.C.
Or rebuttal in respect of the same from any corner, we are satisfied to hold that on 23-4-1991 Mst.
Maryam Khurshid was abducted by the appellant in order that she may be compelled to marry the appellant. The learned trial Judge in para 37 of his judgment has observed as under:- "Counsel for the accused has tried to argue that the necessary ingredients of Section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. Have not been proved in this case, because the F.I.R. Does not find mention that Mst. Maryam Khurshid was being abducted by the accused for marriage or. Zina. This argument of learned counsel for the accused falls short of the view that it has been very clearly mentioned in the F.I.R. Exh.PA. That Mst. Maryam Khurshid was being abducted by the accused with an intention of committing Zina with her. Even otherwise, I do not think that this plea is available to the accused in this case. Because it has been alleged by the accused in this case that he had arranged his marriage with Mst. Maryam Khurshid, though with her consent. This would show that the factum of marriage, irrespective of abduction is not disputed by the accused himself."
7. It is admitted position that appellant Tahir Bashir was serving as a driver with the parents of Mst.
Maryam Khurshid. The appellant in his statement recorded under section 340(2), Cr.P.C. Has said that his services were terminated by his master one month prior to the incident. In his 340(2), Cr.P.C. Statement he has said that in 1986 Mst. Maryam Khurshid was engaged with him and she had come to his residence at about 8-30 or 8-45 a.m. He has not given the date of her coming at all. In his statement under section 340(2), Cr.P.C. The appellant has not said anything regarding filing of the complaint by Mst. Maryam Khurshid before a Magistrate or having got recorded her affidavit or statement under section 164, Cr.P.C. Before him. Mst. Maryam Khurshid has totally denied execution, of such documents before a Magistrate. Had Mst. Maryam Khurshid gone with the appellant with free will and had married him, there was no reason on earth that she should have not allowed him to have marital obligation. Her refusal on that part establishes that the appellant had tried to perform Nikah or cohabit without her consent. He had tried to have sexual intercoruse with her but he could not achieve the object on account of interference of the lady of the house. Detention of abductee Mst. Maryam Khurshid is admitted by the appellant through D.W.4 Shabbir Hussain. Besides, performance of Nikah by the defence witness DW.3 Hafiz Fatal Karim was found to be fictitious by the learned Trial Judge. In the list of the witnesses filed by the appellant in a suit for restitution of conjugal rights some other names appear, but it does not carry the names of Qari Muhammad Ameen or Hafiz Fazal Karim. The learned Trial Judge, indeed, has dealt with the evidence of prosecution and the defence witnesses judiciously. To us also the evidence of defence witnesses appears to be fictitious and afterthought. Tire learned trial Judge has rightly discarded so. The two contentions raised by the learned counsel for the appellant thus fail. The authorities relied upon by E him do not come to the rescue of the appellant. In such view of the fact we are inclined to dismiss the appeal. However, no request for reduction of the sentence was made. We are thus inclined to maintain the same. However, we shall observe that the appellant is entitled to the benefit of section 382-B, Cr.P.C. Which benefit has not been extended in his favour by the learned Trial Court. The appeal stands dismissed accordingly.