' Mst. Razia Bibi appellant No,2 herein, was married to complainant Mukhtar about 14 years ago and they had children. Yousuf appellant No,1 was on visiting terms with the complainant but he developed illicit relations with his wife appellant Mst. Razia. The complainant forbade appellant Yousuf to visit his house. One day the complainant had gone to Chiniot in connection with a private job and when he returned back he found his wife missing. He was looking for his wife when he was informed. By Allah Yar and Nazra that they had seen his wife going alongwith appellant Yousuf. The complainant approached the uncle of the latter who promised to return his wife but then refused point blank. The complainant went to Police Station, Saddar Chiniot on 29-5-1993 three months after the occurrence and recorded F.I.R. No,283. Both the appellants were apprehended on 30-5- 1993 by P.W.2 S.I. Sarfraz Khan. Appellant Mst. Razia Bibi was medically examined by P.W.3 Lady Dr. Shamim Barlas on 31-5-1993 and her vaginal swabs taken on that day were forwarded to the Chemical Examiner on 21-6-1993 and were found stained with semen.
2. After investigation both the appellants were sent up for trial before Additional Sessions Judge, Chiniot who charged both the appellants under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Appellant Yousuf was also charged under section 16 of the Hudood Ordinance. Both the appellants pleaded not guilty to the charges and claimed trial.
3. Eight witnesses were examined by the State in proof of the prosecution case. Both the appellants made deposition under section 342, Cr.P.C. But they neither made any deposition on oath nor produced any defence.
4. After the conclusion of the trial the learned Additional Sessions Judge convicted both the appellants under section 10(2) of the Hudood Ordinance and sentenced each of them to undergo rigorous imprisonment for 5 years, to suffer 30 stripes and to pay a fine of Rs,2,000 or in default to further undergo rigorous imprisonment for 6 months. Appellant Yousuf was also convicted under section 16 of the Hudood Ordinance and was sentenced to undergo rigorous imprisonment for 3 years, to suffer 10 stripes and to pay a fine of Rs,1,000 or in default to further undergo rigorous imprisonment for 3 months. Both the convicts have challenged their conviction and sentence by the appeal in hand.
5. I have heard learned counsel for the parties at length and have also very minutely perused the record of the case.
6. The original case of the complainant as disclosed in the F.I.R., was that in his absence his wife appellant Mst. Razia had left his house and had accompanied her co-appellant Yousuf which circumstance was disclosed to him by 2 persons Allah Yar and Nazra. However, appearing as P.W.5 the complainant came out with an almost a different story and deposing as a witness he stated that he had once, prior to the occurrence reported in the F.I.R., also seen both the appellants committing Zina with each other in the fields near a watercourse, but on account of the family honour he did not make any report of this occurrence. That event was very ignoble and was more fatal to the family honour but the complainant failed to report it in the police station. Actually the offence of illicit intercourse is more serious than the offence of elopement but strangely the complainant attorned it. It is also interesting to note that the F.I.R. Was recorded 3 months after the alleged elopement of appellant Mst. Razia Bibi after much consideration but this aspect was not disclosed in it. I have considered this aspect of the matter very anxiously and I have come to the conclusion that actually this offence did not occur and the complainant had falsely deposed about it in his testimony during the trial. In so far as the offence of elopement of his wife is concerned, the complainant is not an eye-witness and he relied upon the statement of two persons Allah Yar and Nazra. The former was not produced as witness whereas the latter is his very close relative being his "Hamzulf'. Not only that but Nazra was also a chance witness because he lived three miles away from the village of the complainant and he did not explain as why on that particular day he had gone to the village of the complainant. He not only appeared to be a chance witness but also made a false deposition on point of his near relationship with the complainant. His testimony cannot, therefore, be relied upon in so far as the- allegation of elopement of appellant Mst. Razia Bibi with appellant Yousuf is concerned. It shall thus be seen that there was available on the record no evidence to prove that appellant Mst. Razia Bibi had eloped with appellant Yousuf or was enticed away by him.
7. In so far as the circumstance of their being found together on 30-5-1993 by P.W.2 Si. Sarfraz Khan is concerned, that also appears to be doubtful. It is very strange that both the appellants happened to be together at bus stop Kot Khuda Yar that they were apprehended by this witness when only a day earlier F.I.R. Had been recorded of an occurrence which had taken place three months earlier. This aspect appears to be very intriguing and I suspect that both the appellants were apprehended first and then F.I.R. Was recorded giving it a date of one day earlier.
8. The other fatal aspect of the matter is that the F.I.R. Was recorded three months after the occurrence when the complainant was informed on the very first day of the alleged circumstance of elopement of his wife. Even the point blank refusal of the uncle of the appellant Yousuf took place four days after the occurrence, still the complainant kept mum for about three months. It is incomprehensible that why the complainant did not approach the police for registration of the case when he had been told only four days after the occurrence that his wife would not be returned to him. There is no explanation of this inordinate delay in the registration of the case. In this view of the matter the defence plea of appellant Mst. Razia Bibi appears to be accurate when she said that the complainant used to maltreat and beat her and she had herself left his house alongwith the children and that she was not abducted or enticed away by her co-appellant.
9. The only circumstance going against the appellant is positive report of the Chemical Examiner with regard to the vaginal swa bs of appellant Mst. Razia Bibi. However, there is also one shortcoming in that as well. The vaginal swabs were taken on 31-5-1993 and those were sent to the office of the Chemical Examiner three weeks later on 21-6-1993 and no evidence was brought on the record as where the vaginal swa bs were lying during all that period and whether the same were kept in safe custody and were not interfered with. The matter of vaginal swabs has also, therefore, become very doubtful.
10. The aforementioned circumstances would clearly show that no offence could be proved against both the appellants and the evidence brought on the record did not connect them with the offences for which they were convicted and sentenced.
11. Consequently the appeal is accepted. The conviction and sentence of both the appellants recorded on 13-7-1994 by the learned Additional Sessions Judge, Chiniot are set aside and they are acquitted of the offence for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case.