' By judgment, dated 19-1-1995, the learned Additional Sessions Judge, Sialkot (camp at Pasrur), convicted the appellant, Rashid Ahmad son of Bagh Din, under section 10(2) of the Ordinance, 1979, and sentenced him to R.I. For two years, five stripes and a fine of Rs.1,000 and in default to suffer R.I.
For one month more. Being aggrieved, the appellant has filed the present appeal. I have heard Mr. Ch. Muhammad Nawaz Solehria, learned counsel for the appellant and Mr. Zahid Farani Sheikh, learned counsel for the State. With the assistance of the learned counsel, I have gone through the record.
2. Complainant in this case is Mst. Fehmida daughter of P.W. Nazir Ahmad. F.I.R. Was recorded at 6- 30 p.m. On 25-10-1992 at Police Station Badiana, District Sialkot and the time of incident was given by the complainant as 7-00 p.m. Six days earlier on 19-10-1992. According to the complainant, who gave her age as 14/15 years, on 19-10-1992 at about 7-00 p.m. Mst. Asia Bibi daughter of Bashir Ahmad Ansari came to her house and took the complainant to the fields on the pretext of easing herself but when the two reached near the mosque suddenly appellant Rashid Ahmad and Muhammad Musa son of Bashir Ahmad Arain came in front armed with daggers and forced the complainant into a nearby standing car and took her towards Badiana. According to the complaint, at the time Ashiq Hussain and Faqir Muhammad (both not examined) were standing nearby and they had seen the complainant being taken away in the car. According to the complainant, she was first taken to Rawalpindi in a house where she was kept and the appellant and Muhammad Musa committed Zina-bilJabr with her and, on the day of the making of the complaint, she was able to escape and came by bus to her house and was going to the police station along with her father P.W. Nazir Ahmad and uncle Allah Ditta when on the way they met S.I.
Saeed, who recorded her statement on the basis of which formal F.I.R. Was recorded. After completion of investigation, only appellant Rashid Ahmad was challenged and co-accused Asia Bibi and Muhammad Musa directly involved by the complainant were let of by the police. During the trial, 9 witnesses were examined by the prosecution. The two witnesses Ashiq Hussain and Faqir Muhammad, who according to the complainant, had seen complainant being taken away were not examined. The trial Court acquitted the appellant of the charge of abduction under section 11 of the Ordinance. The reasoning of the learned trial Court in acquitting the appellant under section 11 of the Ordinance relating to abduction is contained in para. 10 of the impugned judgment, dated 19-1-1995 and the same is reproduced here:-- "Abduction.
' In order to prove the charge of abduction, the prosecution has examined Mst. Fehmida victim as P.W.7 and her father Nazir Ahmad appeared as P.W.B. Mst. Fehmida P.W.7 deposed that about two years ago, at evening time, Asia daughter of Bashir Ahmad came to her house and asked her to go in order to answer the call of the nature. She went with her and when she reached near the mosque, Muhammad Musa (since discharged) and Rashid Ahmad accused came there, while holding daggers in their hands. The said Musa and Rashid Ahmad made her to sit in the car after gagging her mouth and that this occasion was witnessed by Ashiq and Faqir Ahmad P.Ws. Both the accused then took her to Rawalpindi and kept her in a house. It is pertinent to note here that in order to corroborate the statement of the victim, the prosecution did not produce aforesaid Ashiq and Faqir Ahmad P.Ws. As they were given up as being unnecessary. The prosecution has however, produced Muhammad Nazir as P.W.8 who deposed that in his presence, his daughter Fehmida victim left with Asia and when the victim did not turn up, so he alongwith Asia and that they had also seen Musa and Rashid accused while standing near the mosque and that they might had taken Mst. Fahmida with them. The careful review of the statements of both the above said P.Ws.
Shows that they made contradictory statements. According to Mst. Fehmida victim she left with Asia Bibi at about evening time whereas according to Muhammad Nazir P.W. Mst. Asia came to her house at 10/11 a.m. It is also significant to note that the victim did not mention in her statement as to whether at the time of her departure with Asia from the house, her father Nazir was present in the house or not. The P.Ws. Who told Nazir Ahmad P.W. Have not been produced by the prosecution.
Mores, Asia Bibi and Musa were declared innocent by the police and were got discharged. All these facts lead to an irresistible conclusion that Mst. Fehmida Bibi victim eloped with Rashid Ahmad accused and subsequently a cock and bull story was fabricated and Asia, Musa and Rashid were nominated as accused. If Mst. Fehmida Bibi was deceitfully taken by Mst. Asia from her father's house in the presence of Nazir Ahmad P.W. And his wife, and Nazir Ahmad was also told by Faqir Muhammad and Ashiq Hussain (given up P.Ws.) then there 'was no fun in wasting 5/6 days in reporting the matter to the police. Although Muhammad Nazir P.W. Stated during cross- examination that he went to the police station to inform about the above facts but- this fact does not find corroboration from any other source. Mores, the complainant also admitted that he did not move any application to the police. There are certain other material facts which go to prove that the victim was consenting party to the offence. She was allegedly kept 5/6 nights at Rawalpindi but it does not appear from her statement that she raised any alarm. She also admitted during cross- examination that both the persons used to bring food for her and she used to remain there alone.
Had it been a case of abduction, she would have raised alarm wherever she was taken and her chastity and family honor would certainly have been saved but her complete silence throughout her stay with the accused is indicative of the fact that she was a consenting party. The learned D.D.A. Assisted by the complainant's counsel has argued that at the time of abduction Mst.
Fehmida Bibi P.W. Was minor as per her birth certificate- Exh.P.B. I am afraid this contention on behalf of the prosecution is not helpful to it because according to the lady doctor who, medically examined her she was girl of moderate built, with secondary sexual characters welldeveloped. So in my opinion, Mst. Fehmida Bibi was adult at the time of alleged occurrence and no benefit can be extended to the prosecution from the aforesaid birth certificate. This being so, the prosecution has failed to prove the charge of abduction under section 11, Offence of Zina (Enforcement of Hudood)
Ordinance VII, 1979 as such by extending the benefit of doubt, I acquit Rashid Ahmad accused from this charge."
3. As observed, the trial Court has, however, found the appellant guilty of the charge under section 10(2) of the Ordinance. P.W.8 Nazir Ahmad, father of the victim/complainant does not prove the case of Zina against the appellant. The entire case of the prosecution depends on the statement of the complainant and the P.W.6, Lady Doctor, Rashida Iqbal. According to the two statements, the hymen of the victim was torn and vagina admitted two fingers easily and in her opinion she had been subjected to sexual intercourse. For maintaining the conviction of the appellant under section 10(2) of the Ordinance, the evidence of the complainant has to be believed, as without her evidence there is no case against the appellant.
4. The conviction of an accused can be maintained on the basis of the solitary statement of the prosecutrix provided her statement is trustworthy and free from material contradictions. In the present case, it was unsafe to base the conviction of the appellant on the solitary statement of the prosecutrix as complete reliance cannot be placed on her testimony which contains major infirmities. The entire version about abduction has been disbelieved by the trial Court. The relevant part of the judgment of the trial Court has been reproduced hereinabove and in my view the trial Court came to the right conclusion in acquitting the appellant of the charge under section 11 of the Ordinance. Then the complainant has reiterated her allegation of Zina-bil-Jabr both against Muhammad Musa and appellant Rashid Ahmad. As observed, Muhammad Musa was not even challenged as the evidence against him was not found trustworthy by the investigating agency.
The defense has also given a motive for false implication and that was that Rashid Ahmad had reported about the immoral activities of prosecutrix and her liaison with Musa. The defense witness Muhammad Siddique was also examined in support of the defense.
' In view of the major infirmities and contradictions in the evidence of the solitary witness, the victim, in my view, it was unsafe to base the conviction of the appellant on such evidence. Benefit of doubt should have gone to the appellant.
5. As a result, this appeal is allowed, the impugned judgment, dated 19-1-1995 is set aside and the appellant acquitted of the charge. The appellant is on bail from this Court. His bail bonds are discharged.