' Appellants Jani and Ramzan have challenged the impugned judgment, dated 20-3-1994 of the learned Assistant Sessions Judge, Tandoadam, passed in Sessions Case No. 16 of 1992, whereby they have been convicted under section 11 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, and each of them sentenced to R.I. For 3 years and to pay a fine of Rs.2,000 each and in default in the payment of fine, to further undergo R.I. For 6 months. No order has been passed by the trial Court under section 382-B, Cr.P.C. Apart from the appellants, there were two other accused, namely, Akbar Ali and Hakim Khan, who had absconded and their case has been kept on the dormant file with a direction that they be tried according to law as and when arrested. I have heard the arguments of Mr. Syed Ahsan Ali, learned counsel for the two appellants and Mr. Habibur Rasheed, learned counsel who has represented the State. With the assistance of the learned counsel; I have gone through the record.
2. Para. 2 of the impugned judgment which gives the prosecution story according to the complaint lodged by P.W.1 Mumtaz Abbasi, father of abductee Mst. Kausar, is reproduced here:- "The facts of the prosecution case as narrated in the F.I.R. Lodged by complainant Mumtaz at Police Station Tandoadam on 21-6-1989 at 1430 hours are that the complainant is working as a laborer in Tanweer Textile Mills and living along with his family members in Joharabad Mohallah, Tandoadam. The complainant has got two sons and six daughters out of which Mst. Kousar aged about 15 years was his elder daughter. It is alleged by complainant that Mst. Kouras was engaged two months prior to the present incident with a person living at Punjab. The complainant has further stated that one Akbar Ali son of Muhammad Rafique Lohar was residing in his Mohallah for whom her daughter Mst. Kousar has complained that he was teasing her. On 12-61989 in the morning hours Hakim Lohar, resident of Sargodha Punjab had come to visit Akbar Ali who was unnecessarily making complaints against Akbar Ali. According to F.I.R. On 13-6-1989 at 14-00 hours the complainant his son and his wife Mst. Piroo were available in their house while suddenly Akbar Ali, Hakim Khan, present accused Ramzan and Jani armed with Lathis entered in the house of complainant and forcibly toctk away her daughter Mst. Kousar in the Datsun who was sleeping in the house. The complainant due to fear of the' accused did not come out of the house and in the evening the complainant went to Councilor of the Mohallah namely Javed Hussain and informed him of the incident. The Councillor Javed asked the complainant that it is matter of neighborhood so first they should take efforts privately and thereafter the F.I.R. Be lodged. It is further alleged in the F.I.R. By complainant that thereafter the complainant along with said Javed Hussain, Councilor went to Sargodha Punjab where they were informed that the accused had not come there, then Javed Hussain stayed there at Punjab and directed the complainant to lodge the report with police. Thereafter the complainant came back and lodged the report as stated above."
3. After the F.I.R. Was lodged formally, the case was investigated by the police and thereafter challah was submitted against the accused, who were all shown as absconders. Non-boilable warrants were issued against the accused. Appellant Ramzan was arrested by the police on 26-9- 1992 whereas appellant Jani surrendered himself on 13-10-1992. Later on both the appellants were released on bail and, on conviction by the impugned judgment, they were remanded for undergoing the sentence passed against them. The other two accused, namely, Akbar Ali and Hakim Khan, could not be arrested and were declared proclaimed offenders by order, dated 31-10- 1993 passed by the trial Court.
4. During the trial, the prosecution examined 5 witnesses. P.W.1 is complainant Mumtaz Abbasi, father of the abductee; P.W.2 is Mst. Piroo, wife of the complainant and mother of the abductee; P.W.3 Muhammad Ishaque is the son of the complainant and brother of the abductee; P.W.4 is Khairuddin Abbasi, real brother of the complainant and P.W.5 is the Investigating Officer Raja Abdul Ghafoor. Statements of the two appellants were recorded under section 342, Cr.P.C. Who denied the case of the prosecution and stated that the same was false and that they had been involved on account of enmity with the complainant.
' On conclusion of the arguments advanced by the learned counsel for the parties, by a short order passed on 15-11-1995, this appeal was allowed and the appellants were acquitted of the charge.
Detailed reasons for the short order are given in the present judgment.
5. In support of this appeal, Mr. Syed Ahsan Ali, learned counsel for the appellants raised the following contentions:--
(a) There is a delay of 8 days in lodging of the F.I.R. It has been noted that the F.I.R. Was lodged by the complainant on 21-6-1989 at Police Station Tandoadam in which he gave the date of abduction as 13- 6-1989. It was submitted that the delay had not been explained satisfactorily by the complainant:
(b) The abductee Was not examined. According to learned counsel for the appellants, the prosecution witnesses, specially the Investigating Officer, have not stated about the efforts made for recovery of the abductee.
(c) No independent witness was examined. It was pointed out that P.W.1 and P.W.2 are the parents of the abductee whereas P.W.3 Muhammad Ishaque is the brother of the abductee and P.W.4 Khairuddin Abbassi is paternal-uncle of the abductee. It was contended that Javed Councilor was a material witness, who was not examined. According to learned counsel for the appellants, Javed, Councilor, if examined, would have given evidence about the alleged abduction and the efforts made, if any, for recovery of the abductee.
(d) The police had examined the witnesses after one month of the incident.
(e) Both the appellants are. Real brothers, both are married and having children and are neighbors of the complainant and, according to the prosecution witnesses, known very well to the complainant party for decades. According to learned counsel, it is unbelievable that two real brothers would abduct a neighbor's daughter with whom they had cordial relations for 30/40 years.
(f) There are material contradictions in the evidence of the prosecution witnesses creating a serious doubt about the prosecution case.
6. Mr. Habibur Rasheed, learned counsel for the State, did not support the impugned judgment submitting that the prosecution had a weak case and had failed to discharge the burden of proving its case against the appellants beyond reasonable doubt.
' In this case, admittedly, there is a delay of over 8 days in the lodging of the F.I.R. And learned counsel for the appellants is correct in submitting that this delay has not been satisfactorily explained by the complainant. In the F.I.R. It is stated that the complainant went to Javed, Councilor in the evening but, when he appeared in the Court to give evidence, he stated in his deposition that he went to Javed Councilor half an hour after the incident. Then according to the complainant, he and Javed, Councilor went to Sargodha for recovery of the girl where they stayed for about 6 days.
P.W.2' Mst. Piroo (wife of the complainant), on the other hand, stated that the complainant went to Javed, Councilor after about 8 days of the abduction. In this case Councilor Javed was an important and material witness who should have been examined by the prosecution; his name is given in the calendar of witnesses in the challah but for reasons not available on record he was not examined although in his evidence the complainant stated that Javed, Councilor was present in the Court premises. If Councilor, Javed had been examined, he would have confirmed or denied what was stated by the complainant to him about the abduction and whether he had accompanied the complainant to Sargodha for search and recovery of the girl. He also would have confirmed about the time and date when he was contacted by the complainant. The discrepancy in the evidence of P.W.1 and P.W.2 as to when Javed, Councilor had been contacted by the complainant has been noted. The abduction had taken place on 13-6-1989. According to the complainant, he contacted Javed, Councilor and then took him to Sargodha where both of them stayed for about 6 days and then came back and lodged the F.I.R. But P.W.2 Mst. 'Piroo says that the complainant contacted Javid, Councilor after about 8 days of the incident. If Javed, Councilor was contacted by the complainant after 8 days and then the complainant and Javed, Councilor went to Sargodha and stayed there for about 6 days and then the F.I.R. Was lodged, the date when the girl was abducted becomes doubtful. I agree with the learned counsel for the appellants that in this case there is a delay of 8 days in the lodging of the F.I.R. Which delay has not been satisfactorily explained and an inference can be drawn, in the facts and circumstances of the case, that during this period deliberations took place for lodging the F.I.R.
8. An important aspect of this case is the non-examination of the abductee, Mst. Kausar. The Investigating Officer has not stated anything in his evidence about the efforts made to recover Mst.
Kausar or to get her examined in the case if she was available. The incident is alleged to have taken place in June, 1989. The evidence was recorded during 1993-94. None of the prosecution witnesses, all closely related to the girl, have stated anything about the whereabouts of Mst.
Kausar. The two appellants are the neighbors of the complainant and were on visiting terms with each other and had been known to the complainant party for about 40 years, according to the complainant and his wife. None of the prosecution witnesses have given evidence that she had disappeared and her present whereabouts were not known. Obviously the girl was not with the appellants as then there would have been no difficulty in her recovery and her presence before the Court during the trial as a witness. It has also been noted that in the F.I.R. The allegation was that one Akbar Ali used to tease the girl. No allegation was made that the two appellants used to tease the girl. Akbar Ali was also resident of the same Mohallah as the complainant and the appellants but apparently he was not apprehended. In the F.I.R., it is mentioned that Hakim Khan came to Akbar Ali at Tandoadam and then he had also met the complainant and complained to the complainant as to why the complainant was causing problems to Akbar Ali. Neither in the F.I.R. Nor in the evidence of the prosecution witnesses there is any reference about the friendship or other contact between Akbar Ali and Hakim Khan on the one side and the two appellants on the other side.
The abduction is alleged to have taken place during the day time at 2-00 p.m. The abduction had taken place in the populated area of Tandoadam. It has come in the evidence of the prosecution witnesses that Mohallah people had been attracted to the scene of the incident. It has come in the prosecution evidence that there was a municipal Naka nearby and shop of one Abdul Hameed was next door. However, no one from the Mohallah or neighbors was cited as a witness or examined during the trial. It has also been noted that, according to P.W.2, Mohallah people had been attracted on the cries of the girl whereas P.W.1 makes no mention of the cries raised by the girl and the Mohallah people having been attracted. In any case, as observed, being a populated area, if the incident of abduction had taken placed and 4 culprits with Lathis had come to the house of the complainant and forcibly abducted his girl, hue and cry must have raised and the Mohallah people attracted to the scene. As observed, no one from Mohallah people was cited or examined as a witness.
9. Another significant reason which casts a doubt regarding the prosecution version is that the police recorded statements of the prosecution witnesses after about a month of the incident. In criminal cases, the evidence of the witnesses is to be recorded as early as possible and if inordinate delay takes place in recording the statements of the witnesses under section 161, Cr.P.C.
The prosecution is required to bring on record an explanation for such delay, which is lacking in the present case.
10. After the analysis of the prosecution case, I have reached the conclusion that the prosecution had failed to discharge the burden to establish its case beyond reasonable doubt against the two appellants. As noted, learned counsel representing the State has also not supported the judgment stating that the two appellants are entitled to benefit of doubt.
11. As a result, Criminal Appeal No.47/K. Of 1994 is allowed, the impugned judgment, dated 20-3- 1994 passed by the learned Assistant Sessions Judge, Tandoadam, is set aside and the two appellants, Jani and Ramzan, are acquitted of the charge.