' Eiden, Sardar, Mukhtar and Khan Muhammad sons of Gulbahar; Rehmat All son of Wahid Bux and Shaulcat All son of Pahlwan have filed this appeal against the judgment, dated 7-9-1994 of the learned Additional Sessions Judge, Rahimyar Khan, passed in Hudood Case No,39 of 1991, whereby all the appellants have been convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and each one of them sentenced to three years' simple imprisonment; all the appellants have also been convicted under sections 452 and 148, P.P.C. And under each count they have been sentenced to 6 months' S.I. Eiden was also convicted under section 10(3) of the said Ordinance and sentenced to 6 years' imprisonment (3 years' R.I. And 3 years' S.I.). All the sentences have been ordered to run concurrently in respect of each appellant. All of them have been extended the benefit of section 382-B, Cr.P.C. The appellants had also been charged under section 368, P.P.C. But according to the impugned judgment charge under section 368, P.P.C.
Stands merged in section 11 of the said Ordinance.
2. It may be observed that there were 8 other accused who faced trial, namely, Allah Bux son of Aziz-ur-Rehman, Dil Murad, Ilam Din, Bashir, Allah Bux son of Noor Muhammad, Ghulam Qadir, Sona and Muhammad Ramzan, but they were given benefit of doubt and were acquitted.
3. Arguments of Mr. Mumtaz Mustafa, learned counsel for the appellants and Syed Ali Raza, learned counsel appearing for the State, were heard at length. With the assistance of the learned counsel, record was perused including the evidence, statements of the accused recorded under section 342, Cr.P.C., the exhibits and the impugned judgment. Complainant in this case is P.W.3 Sher Muhammad, father of the victim P.W.4 Mst. Aisha Bibi. Report was lodged by the complainant at 8- 55 a.m. On 14-7-1989 (F.I.R. No,140 of 1989 Police Station Ahmadpur Lamma, District Rahimyar Khan), stating that on the same day at about 8 a.m. Eiden and Sardar armed with double-barrel guns, Mukhtar armed with pistol and the remaining three appellants armed with sticks criminally trespassed the house of the complainant and they were accompanied by Dil Murad and 11am Din (acquitted) who were armed with pistol and hatchet respectively. According to the complainant, Eiden caught hold of Mst. Aisha Bibi from her arm and dragged her and Sardar with the assistance of other accused persons while pushing the victim from the back forcibly boarded her in a Wagon and drove away with the abductee. According to the complainant, Shahroo Khan son of Haji and Yaroo (Yar Muhammad) witnessed the occurrence and accompanied the complainant and his son Abdul Raz7aq in chasing the accused persons but, when the wagon reached near the Shrine of Bhamba Shaheed, the tie-rod of the wagon opened and the wagon came to a halt but the accused persons managed to shift abductee into another wagon and then they disappeared.
According to the complainant, the incident had taken place at the behest of Ghulam Qadir (real brother of the complainant) who was also an accused but has been acquitted. F.I.R. Was registered under section 452/148/149, P.P.C. Read with section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The case was registered by P.W. A.S.I. Jan Muhammad, who also was the Investigating Officer. S.H.O./Inspector Muhammad Yaqoob had also partly investigated the case and, according to his evidence, on 16-9-1989 he recovered Mst. Aisha Bibi from Adda Tarinda Muhammad Panah and on the same day got her medically examined but her statement under section 161, Cr.P.C. Was recorded on 20-9-1989. He arrested the 5 accused but Eiden was arrested on 29-9-1989. According to the prosecution, when abductee's statement under section 161, Cr.P.C.
Was recorded, it transpired that Allah Bux son of Azizur Rehman, Bashir, Sona, Muhammad Ramzan and Allah Bux son of No-or Muhammad has concealed and confined the abductee knowing that she was an abductee and, in the circumstances, the said 5 persons were also challaned to face trial under .Section 368, P.P.C. But, as observed, they were acquitted. All the 14 accused i,e, 9 accused (including the 6 appellants) named in the complaint and 5 other accused involved by the abductee faced trial under the aforesaid provisions of law.
4. The case of the prosecution rests on the evidence of complainant Sher Muhammad, abductee Mst. Aisha Bibi, Lady Doctor Tahira Jabeen, who had medically examined the abductee and the two Investigating Officers, namely, A.S.I. Jan Muhammad and S.H.O. Muhammad Yatioob. Other witnesses mentioned in the challan who had allegedly seen the incident at some stage, namely, Abdul Razzaq, Shahroo and Sharifan Khatoon were given up as being unnecessary and Yar Muhammad, Muhammad Asghar and Rahim Bux as having been won over by the accused.
5. No recovery of any weapon was made from any accused except a pistol from Dil Murad but he was acquitted. The main accused in this case is Eiden (maternal-cousin of the complainant) and his defence, which was put to the two main witnesses, namely, the complainant and the abductee, and also in his statement under section 342, Cr.P.C., supported by certified/attested copies of judgments and other documents, was that in 1956, when Eiden and the abductee were very young (about 5 to 7 years old), their parents had performed their Nikah and the Nikah had been performed according to the custom of Watta-Satta. According to the defence, Mst. Waddan (sister of Eiden) was married to Ghulam Qadir (acquitted accused and real brother of the complainant) and in return abductee Mst. Aisha Bibi was married to Eiden; Mst. Aisha Bibi being real niece of Ghulam Qadir. According to defence, due to minority of Eiden and Mst. Aisha Bibi at the time of Nikah no Rukhsati took place but, 10 years prior to the incident, Mst. Aisha Bibi herself started living with Eiden as his wife. According to defence, no occurrence had taken place as alleged by the prosecution.
6. According to Eiden, in 1979 a suit for jactitation of marriage was filed by Mst. Aisha Bibi against Eiden but in 1980 it was withdrawn by her with permission to file a fresh suit. According to Eiden, on 11-10-1989 he filed a suit for restitution of conjugal rights against Mst. Aisha Bibi being Family Suit No,315 of 1989 and Mst. Aisha Bibi filed her second suit for jactitation of marriage being Family Suit No,155 of 1990 on 17-6-1990. Both the suits were tried by the Family Court, Sadiqabad, and, by common judgment, dated 19-1-1992 the suit for jactitation of marriage was dismissed and the suit filed by Eiden for restitution of conjugal rights was decreed. Being aggrieved, Mst. Aisha filed two appeals, being Family Appeals Nos.326 and 327 of 1992, and, by a consolidated judgment, dated 11- 11-1992, the learned Additional District Judge, Rahimyar Khan, dismissed both the appeals. No further proceedings were taken by Mst. Aisha Bibi against the said judgment and, according to learned counsel for the appellants, the said judgment has attained finality.
7. The case put up by the prosecution through the complainant was that, at the time of abduction, Mst. Aisha Bibi was 12 years old. The incident had taken place in July, 1989 but, according to para. 9 of the judgment of the learned Additional District Judge, Rahimyar Khan, dismissing the Family Appeal filed by Mst. Aisha Bibi (Exh.D.D.), Mst. Aisha Bibi, when she had given evidence before the Family Court, had given her age as 35 years. According to the case of the defence as put up in the cross-examination of the prosecution witnesses, Mst. Aisha Bibi was over 40 years old but in any case, according to her own statement while giving evidence before the trial Court some time in 1990-91, her age was 35 years. This shows that according to Mst. Aisha Bibi herself she was in any case over 30 years old at the time of abduction and not 12 years old as stated by the complainant.
Even the Lady Doctor who had examined Mst. Aisha Bibi gives her age as 25 years, although she stated that no ossification test had been conducted for determining the age of Mst. Aisha Bibi.
8. The defence also relied upon Exh.D.G. Which is an attested copy of the extract from the register of Nikah Khani of Village Bhamba, Tehsil Sadiqabad, District Rahimyar Khan, relating to the year 1956.
According to this document, Nikah of Eiden and Mst. Aisha Bibi was performed on 11-2-1956 and one of the witnesses of the Nikah named in the said document is Wahid Bux, who also gave evidence as D.W.2 in the family suit supporting the factum of Nikah. According to Wahid Bux's evidence, their Nikah was performed in his presence and, at that time, Mst. Aisha Bibi was 4/5 years old and Eiden was 5/6 years old. This is mentioned in the judgment dated 11-11-1992 passed by the learned Additional District Judge, Rahimyar Khan, in the family appeals.
9. Both complainant Sher Muhammad and abductee Mst. Aisha Bibi in their evidence before the trial Court have denied that any suit was filed for jactitation of marriage in 1979 and had been withdrawn in 1980. According to them, if there is some record in that regard, Eiden must have manipulated the same. However, both these main witnesses of the prosecution admitted in their evidence about the suit filed for restitution of conjugal rights in 1989 and suit filed in 1990 by Mst.
Aisha Bibi and that the suit of Eiden had been decreed and Aisha's suit had been dismissed and that appeals had been filed by Aisha against the judgments. It is also admitted in evidence that Mst. Aisha Bibi was not married to any other person although her other sisters, younger and elder, have been married.
10. From the evidence on record it follows that the incident had taken place and Mst. Aisha Bibi had been taken away by Eiden all along claiming that she was his wife. The fact that Nikah had taken place when the parties were minors has been established by the judgments passed by the Family Court and the Appellate Court. According to the evidence on record, Mst. Aisha Bibi must have attained puberty long ago much before the date of abduction but she filed suit for jactitation of marriage in 1990 when she was around 30 years old and still not married to any other person and the suit and her appeal have also been dismissed.
11. In this state of the evidence on record, it has to be determined whether Eiden could be convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Section 4 of the Ordinance lays down that a man and a woman are said to commit Zina if they wilfully have sexual intercourse without being married to each other. Section 5 of the Ordinance refers to Zina liable to Hadd and section 6 defines Zina-bil-Jabr. Section 10 refers to Zina and Zina-bil-Jabr liable to Tazir. Section 10(2) provides for punishment for Zina liable to Tazir and section 10(3) provides for punishment for Zina-bil-Jabr liable to Tazir. From reading all the said provisions it is apparent that a person is not liable under the said provisions if the person with whom Zina or Zina-bil-Jabr is committed is a person to whom he or she is wilfully married. As observed, from the evidence adduced in the case and also the judgments of the Family Court and the Appellate Court as well as from the extract from the register of Nikah Khani of the concerned village it has been established that Eiden and Mst. Aisha are married to each other and as such Eiden could not be convicted under section 10(3) or even under section 10(2) of the said Ordinance. From the above it further follows that neither Eiden nor any of the other 5 appellants could have been convicted under section 11 of the said Ordinance.
12. The next question which required consideration is whether the appellants or at least Eiden could have been convicted under any other provision of the law i,e, Pakistan Penal Code. Section 340, P.P.C. Defines wrongful confinement as restraining any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits and punishment for wrongful confinement for 10 days or more days is up to 3 years' imprisonment and also fine, under section 344, P.P.C. In this case, according to Mst. Aisha Bibi, she had been confined against her wishes by Eiden for about two months i,e, from 14-7-1989, when she was abducted, till 16-9-1989 when she was recovered.
13. The section 362, P.P.C. Defines abduction. Section 362 states that whoever by force compels, or by any deceitful means induces any person to go from any place is said to abduct that person and, under section 365, P.P.C, the punishment for kidnapping or abducting with intent to secretly and wrongfully to confine a person is up to 7 years' imprisonment and fine.
14. From the evidence of the abductee, which evidence is corroborated by her father, the complainant, it has been established that the abductee had been taken by force and confined by Eiden for more than 10 years against her will and, despite the fact that Mst. Aisha Bibi had been married to Eiden when both of them were minor and she had not exercised the option of puberty after attaining puberty, Eiden had no right under the law to forcibly remove Mst. Aisha Bibi and wrongfully confine her against her will. Learned counsel for the appellant had relied upon a statement alleged to have been given by Mst. Aisha Bibi under section 164, Cr.P.C. While she was in custody of Eiden, but Mst. Aisha Bibi had stated in her evidence that the said statement was obtained under threats by Eiden when she was in his wrongful confinement. The evidence of Mst.
Aisha Bibi, a mature and adult female about her wrongful confinement by Eiden has been believed by the trial Court and in view of her evidence and the stand taken throughout that she was not married to Eiden and had filed suit and then appeal also provides corroboration to the prosecution case that she had been taken away and confined wrongfully by Eiden,
15. As regards other accused, it has to be observed that, apart from Eiden, 13 other accused including 3 real brothers of Eiden and other relatives had been roped in by the complainant and Mst. Aisha Bibi and out of the said 13 accused 8 have been acquitted. In my view, on the same evidence, it was unsafe to convict the other 5 co-appellants.
16. As regards the charge under section 148, P.P.C., no weapon had been recovered from any of the appellants but the recovery of pistol from Dil Murad also could not be proved and he was acquitted. The charge under section 148, P.P.C. Had not been established.
17. As regards the charge under section 452, P.P.C. The evidence has not established beyond reasonable doubt that the appellants or any of them had committed house-trespass. The charge under section 452, P.P.C. Had also not been proved.
18. As a result, this appeal succeeds in so far as appellants Sardar, Mukhtar and Khan Muhammad all sons of Gulbahar; Rehmat Ali son of Wahid Bux and Shaukat Ali son of Pahlwan. All the said 5 appellants are acquitted of all the charges. It is directed that they be released forthwith if not squired in any other case.
19. As regards Eiden son of Gulbahar, he is acquitted of the charge under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. However, the evidence has proved beyond reasonable doubt case against him under sections 365 and 344, P.P.C. He is convicted under both these sections for abduction of Mst. Aisha and for keeping her under wrongful restraint for over ten days. Under section 365, P.P.C., Eiden is sentenced to one year's R.I. And also fined Rs,5,000 and in default in the payment of fine to suffer S.I. For three months more. Eiden is also sentenced under section 344, P.P.C. To one year's R.I. And he is also fined Rs,5,000 and in default to suffer S.I. For three months more. The sentences of imprisonment shall run concurrently. The benefit of section 382-B, Cr.P.C. Is extended to appellant Eiden. The conviction of appellant Eiden under sections 148 and 452, P.P.C. Is set aside.
20. This appeal stands disposed of in the above terms. Criminal Suo Motu No,9/L of 1994 also stands disposed of.
21. Before parting with this case, it is considered appropriate to make some observations about the pathetic and miserable position of females who find themselves in such situations for no fault on their part. The fight goes on between two factions, generally, related to each other---a fight for their so-called honour or ego or pride---but none amongst the warring factions are least concerned about the girl or woman involved, who is treated like a Chattel.
' In this case if the parties have any concern or compassion for the victim, Mst. Aisha, they should settle their differences over the victim as early as possible i,e, either the marriage bond is terminated or the victim allowed to go and live with Eiden, if it is the wish now of both Eiden and Mst. Aisha. It has been noted with great concern and pain that in this fight between the factions, who are very closely connected and in which Mst. Aisha is not at fault on any account, her youth has been sacrificed at the altar of her elders' ego and pride.