Jan Sher son of Ajab Khan stands convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to suffer 7 years' rigorous imprisonment with 20 stripes and a fine of Rs.5,000. It was further ordered that in case the convict fails to pay the fine, he shall undergo simple imprisonment for 6 months. It is also mentioned in the impugned order that in case, the fine is paid by the convict-appellant, it shall go to the father of the abductee. The trial Court also gave the benefit of section 382(B), Cr.P.C. To the convict-appellant.
2. Not content with the aforesaid order, Jan Sher appellant came in appeal to this Court against his conviction and sentence. The State has also filed a Criminal Revision Petition No. 7/95 for the enhancement of sentence.
3. This order will dispose of both the appeal and the Revision Petition as both arise out of the same single order.
4. The prosecution story as unfolded during the investigation may be put up thus:-- During the days of occurrence, H.C. Shah Alain (P.W.3) Incharge, F.C. Abdul Khalid (P.W.2), F.C.
Muhammad Hanif (P.W.1) and F.C. Asad were posted at Bassary Police Post. On the fateful day, i.e. 22-1-1993, F.C. Abdul Khalid (P.W.2) had gone to Nullah Bassary for making ablution in order to offer his morning prayer. While proceeding towards the Nullah, he saw two persons going on a path at some distance from the Karakoram Highway. Abdul Khaliq (P.W.2) suspected them and rushed back to the Police Post and informed the Incharge H.C. Shah Alam (P.W.3) in this respect. Armed with this information, H.C. Shah Alam (P.W.3) in the company of Abdul Khaliq, Muhammad Hanif and Asad F.Cs. Left for the spot. And where on their arrival, they caught hold the two persons namely Jan Sher and Mst. Kulsooma. On inquiry, Jan Sher told that he belongs to Swat and Mst.
Kulsooma is his wife. Jan Sher was known to the Police and they had also the knowledge that Jan Sher had not married from Chilas. The girl namely Mst. Kulsooma was dressed in male clothes. Both the boy and the girl were brought to Police Post Bassary and from there they were taken to Police Station Thore. H.C. Shah Alam was directed by the S.H.O. Thore, to take the accused to Police Station Chilas, as the girl was allegedly abducted from Chilas. The accused Jan Sher and the girl were handed over to the Police at Police Station Chilas, where H.C. Shah Alain (P.W.3) lodged the report at 10-15 a.m. On the very day of occurrence, a case under section 10/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered by S.H.O. Abdul Mubeen (P.W.7). The contents of the report were read over to its deponent H.C. Shah Alain (P.W.3), who after admitting the same to be correct signed it. Abdul Mubeen, Investigating Officer prepared site plan Exh. PW- 7/A at the instance and pointation of one Nageen, (not produced at the trial) on the same day and the girl was sent to the Medical Officer for medical examination and report, but there is no medical report on the file of trial Court. Thereafter the Investigating Officer sent Mst. Kulsooma to the Court of Magistrate 1st Class for recording her statement under section 164, Cr.P.C. Mr. Adam Shah, Magistrate 1st Class recorded the statement of Mst. Kulsooma under section 164, Cr.P.C. Which is Exh.PW-6/A. The I.O. Effected the formal arrest of the accused, who were brought to the Police Station Chilas by H.C. Shah Alam (P.W.3) from Police Post Bassary. Th, Investigating Officer also prepared site plan Exh.PW-7/8 at the instance and pointation of H.C. Shah Alam (P.W.3). After completing the investigation described in the manner, stated above, the Investigating Officer prepared the final police report and submitted the challan against the accused Jan Sher under section 11/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the concerned Court through S.P. Diamer. This is in short, the prosecution story.
5. In order to bring home guilt to the convict-appellant, the prosecution placed its implicit faith on the testimony of F.C. Muhammad Hanif (P.W.1), F.C. Abdul Khalid (P.W.2), H.C. Shah Alam (P.W.3)
Incharge, Police Pos Bassary, Adam Shah, Magistrate (P.W.6) and the Investigating Officer Abdul Mubeen (P.W.7) besides the statements of Hajat Khan (P.W.4) father-in-law as well as uncle of Mst.
Kulsooma and Abdul Mateen (P.W.5) father of Mst. Kulsooma. It is to be seen whether the statements furnished by the aforesaid P.Ws. Ring true and get support from the surrounding circumstances. It is an admitted fact that P. W .1 to P. W.3 are the Police Personnels, who are in direr l subordination of Sub-Inspector Abdul Saboor, real brother of Hajat Khan (P.W.4) posted at Gunner Farm Chilas. So their impartiality is a factor whirl; could easily be questioned by the defence and they could be termed as interested witnesses. P.W.4 is the father-in-law, P.W.5, is the father of Mst.
Kulsooma and P.W.6 Adam Shah Magistrate, who recorded the statement of Mst. Kulsooma under section 164, Cr.P.C. While S.H.O. Abdul Mubeen (P.W.7, who completed the investigation and submitted the complete challan against accused Jan Sher through S.P. Diamer to the concerned Court Their evidence is to be scrutinised with great care and caution.
6. F.C. Abdul Khalid (P.W.2) deposed before the Court that on the eventful day, he had gone to Bassary Nullah from the Police Post situated on the Karukoram Highway for making ablution to prepare himself for offering morning prayer. While proceeding towards the Nullah, he saw two persons going on a track at some distance from the K.K.H. F.C. Abdul Khaliq (P.W.2? Suspected them and rushed back to the Police Post Bassary, where on his arrival he informed the Incharge H.C. Shah Alam (P.W.3) about the two suspects. H.C. Shah Alain left immediately for the spot in the company of F.C' Muhammad Hanif (P.W.1), F.C. Abdul Khaliq (P.W.2) and F.C. Asad (no produced in the Court) where on their arrival, they apprehended the two persons. One of them, was a girl who was dressed in male clothes and was speaking Sheena, her companion aged 19/20 years namely Jan Sher was speaking Urdu and Pashtu. They were questioned by the Incharge H.C. Shah Alam (P.W.3) and both of them told the Police that they are husband and wife. Jan Sher convict-appellant was already known to the Police Personnels posted at Bassary Police Post and they knew that Jan Sher had not married at Chilas They brought Jan Sher and Mst. Kulsooma to Police Post Bassary, wherefrom they were taken to Police Station Thore, as the Police Post Bassary falls within the territorial jurisdiction of Police Station Thore. On their arrival at P.S. Thore, H.C. Shah Alam (P.W.3) at the bidding of the S.H.O.
Thore took the two culprits to Chiles because according to the S.H.O. Thore, the occurrence was of Chilas and not of Police Station Thore. The girl and the boy were taken to Chilas where at the dictation of H.C. Shah Alam (P.W.3) S.H.O. Chilas Abdul Mubeen (P.W.7) recorded the first information report and effected the arrest of the accused. More or less to the same effect are the statements of H.C. Shah Alam (P.W.3) and F.C. Muhammad Hanif (P.W.1).
7. Hajat Khan (P.W.4) father-in-law of Mst. Kulsooma stated at the trial that Mst. Kulsooma was engaged to his son Fazlur Rehman in consideration of Rs.25,000 as dower, one maund of ghee and five maunds of wheat as ' Zhob' and the Nikah was performed by one Maulvi Mustafa 3 years prior to the present incident. It is in the evidence of P.W.4 that Abdul Mateen (P.W.5) father of Mst.
Kulsooma is his maternal uncle's son. Hajat Khan (P.W.4) has deposed in his statement before the Court that the Nikah of Mst. Kulsooma was performed with his son Fazlur Rahman with her consent.
Abdul Mateen (P. W.5) deposed in the Court of Session that he had given the hand of his daughter to his nephew Fazlur Rehman 3 years prior to the alleged abduction and her dower was fixed Rs.25000, five maund of wheat and one maund of Desi Ghee and Nikah was performed by Maulvi Mustafa. It is mentioned in the statement of (P.W.5) that the Nikah of Mst. Kulsooma was performed during her minority and he himself acted as Vakil of the girl at the time of Nikah ceremony. It is also stated by (P.W.5) that 3 days before the present occurrence, he had left for Rawalpindi in connection with the treatment of his ailing wife. Where he came to know that his daughter was abducted by accused Jan Sher. It is also in the evidence of (P. W, 5) that he remained at Rawalpindi for 5/6 days in connection with the treatment of his wife and on his return to Chilas, his statement under section 161, Cr.P.C. Was recorded by the local police. It is also in the statement of (P.W.5) that his house is situated on the river side at Chilas on K.K.H. While accused Jan Sher wad working in the neighbourhood of (P.W.5).
8. Adam Shah, Magistrate 1st Class (P.W.6), who has recorded the statement of Mst. Kulsooma under section 164, Cr.P.C. Deposed before the Court that on 23-1-1993, he was posted as Magistrate 1st Class Chilas. The Police produced Mst. Kulsooma before him for recording her statement under section 164, Cr.P.C. And he examined Mst. Kulsooma under section 164, Cr.P.C. In the presence of accused, which is Exh. PW-6/A and bears his signature. Abdul Mubeen, Investigating Officer (P.W.7) has stated before the Court that Bassary Police Post falls within the jurisdiction of Police Station Thore where Jan Sher and Mst. Kulsooma were apprehended. The I.O. Stated that the alleged abduction of Mst. Kulsooma had taken place in the area lying in the jurisdiction of Police Station Chilas. The I.O. Has also admitted in his statement that no written Nikahnama was produced during the investigation of the case in hand. It is in the evidence of (P.W.7) that he fills not examined Fazlur Rehman son of Hajat Khan under section 161, Cr.P.C. The I.O. Further deposed that Maulvi Mustafa, who had performed the Nikah of Mst. Kulsooma with Fazlur Rehman had died as per version of Hajat Khan (P.W.4) and Abdul Mateen (P.W.5), but on the other hand Hajat Khan (P.W.4) had made no mention about the death of Maulvi Mustafa.
9. Accused Jan Sher in his statement under section 342, Cr.P.C. Stated at the trial that he was residing in the house of Mst. Kulsooma as servant. Mother of Mst. Kulsooma had fallen ill and she was taken to Rawalpindi for treatment. Mst. Kulsooma was missing her mother very much and she prevailed upon Jan Sher to take her to Rawalpindi to see her ailing mother. Jan Sher tried to make her understand that there was nobody to look after the house, but she did not listen to any suggestion and compelled him to accompany her to Rawalpindi. On the fateful day at evening time the accused Jan Sher and Mst. Kulsooma boarded a jeep and left for Rawalpindi. At "Thore" the jeep went out of order and they told the driver that they will proceed to "Basha" where they will have their breakfast and they should be picked up from there, where they will be waiting for him, when the accused and Mst. Kulsooma reached Police Post Bassary, they were arrested there. Jan Sher also stated in his statement under section 342, Cr.P.C. That Mst. Kulsooma was major and unmarried and her Nikah has not been proved through any independent. Witness. So much so that her so-called husband namely Fazlur Rehman was not examined by the Police under section 161, Cr.P.C. Nor was produced before the Court. It is further stated in his statement that as Mst.
Kulsooma was not supporting the prosecution case, therefore, she was done to death.
10. I have heard the learned counsel for the appellant ante learned Advocate-General on behalf of the State and perused the record. In the first information report, the date of occurrence has been shown as 29-1-1993 after evening prayer's time, while the date of report has been shown as 22-1- 1993 at 10-30 a.m. As admitted by H.C. Shah Alam (P.W.3), in his statement before the Court. The contents of the report were duly read over to H.C Shah Alam (P.W.3) who signed it in -- token of its correctness. No explanation has been given in this behalf. Police Post Bassary falls within the jurisdiction of Police Station Thore. No doubt, the alleged incident took place at Chilas, but there is no report about the missing of Mst. Kulsooma at Police Station Chilas, therefore, the report should have been lodged at Police Station, Thore, P.Ws., No.1 to P.Ws. No.3 are Police Officials, who are in direct subordination of Sub-Inspector Abdul Saboor posted at Gunnar Farm Chilas, a real brother of Hajat Khan (P.W.4).
11. Hajat Khan (P.W.4) admits that the Nikah of Mst. Kulsooma was performed with his son Fazlur Rehman with her consent, while Abdul Matecil (P.W.5) stated in his statement before the Court that the Nikah of his daughter Mst. Kulsooma with his nephew Fazlur Rehman was recited by him as Vakil during her minority. There is a major contradiction between the statement of Hajat Khan (P.W.4) and Abdul Mateen (P.W.5). According to the statement of Hajat Khan (P.W.4), Mst. Kulsooma was major, because consent cannot be obtained from a minor girl.
12. Abdul Mubeen Investigating Officer (P.W.7) stated in his evidence before the Court that he had not made any request to the Medical Officer for the determination of the age of Jan Sher and Mst.
Kulsooma, but on the other hand the Investigating Officer (P.W.7) had clearly requested the Medical Officer for the determination of the age of Jan Sher and Mst. Kulsooma, vide his request letter dated 22-1-1993, which is placed on the judicial file. There is contradiction between the statement of Investigating Officer and his letter of request.
13. Jar. Sher appellant has taken a clear stand in his statement recorded under section 342, Cr.P.C.
That he had been living in the house of Mst. Kulsooma as a servant. The mother of Mst. Kulsooma was ill and she was taken to Rawalpindi by her husband Abdul Mateen (P.W.5) for treatment. Mst.
Kulsooma requested Jan Sher to take her to Rawalpindi to see her ailing mother. Jan Sher tried to make her understand that there was no body at home to look after the house, but she did not listen to any suggestion and compelled him to accompany her to Rawalpindi. This version of the appellant gets support from the statement of Abdul Mateen (P.W.5) who stated before the Court that 3 days prior to the occurrence, he had gone to Rawalpindi in connection with the treatment of his wife. The appellant further mentioned in his statement under section 342, Cr.P.C. That as Mst.
Kulsooma was reluctant to support the prosecution version, as is evident from her statement recorded under section 164, Cr.P.C. And therefore she was eliminated.
14. Mst. Kulsooma in her statement under section 164, Cr.P.C. Recorded by Adam Shah, Magistrate 1st Class (P.W.6) deposed that Jan Sher was residing in her neighbourhood, visiting her house and was known to her. She has mentioned in her statement that no rape or Zina was committed with her by Jan Sher. There is no allegation of Zina or outraging the modesty of the girl the abductee herself has absolved the appellant from committing any sort of violence or force upon her to outrage her modesty, then the conviction cannot be passed upon the appellant. If the appellant Jan Sher wanted to outrage the modesty of Mst. Kulsooma, he could do so because there was no body in the house of Mst. Kulsooma, moreover on her request the appellant accompanied the girl to take her to Rawalpindi to see her ailing mother. In this case, neither the allegation of Zina nor rape is levelled against the appellant by Mst. Kulsooma, while giving statement under section 164, Cr.P.C. Before the Magistrate nor there is any other evidence available on file, to connect the appellant with the crime in question, therefore, the charge of Zina against the appellant does not stand. Reference can conveniently be made to the authorities: (1) 1992 PCr. LJ 155 (Manzoor Hussain--Appellant v. The State--- Respondent, (2) (1992 M LD 1582) Zahoor and others-- Appellants v. The State--Respondents.
15. The learned Trial Judge while recording the judgment in para.16, formulated the following five questions to determine the guilt of the appellant, which read as under:--
(a) Why they did not travel by a public bus or Wagon from Chilas to Rawalpindi?
(b) Why did they choose a jeep for travelling?
(c) Why they did not wait at Thore till the jeep was made in order?
(d) Why Mst. Kulsooma was dressed with male clothes?
(e) Why did they adopt the hill side path, leaving the K.K.H. Near Police Check Post Bassary?
16. All these questions should have been put to the appellant while being examined under section 342, Cr.P.C. Giving him the opportunity to explain the above questions. The learned Sessions Judge condemned the appellant unheard by formulating the above question while recording the judgment instead of putting the same to the appellant under section 342, Cr.P.C. Moreso, the statement of the accused recorded under section 342, Cr.P.C. Is to be accepted or rejected as a whole, but in the case in hand, the learned Trial Judge has accepted the inculpatory part of the statement of the appellant recorded under section 342, Cr.P.C. And rejected the exculpatory part thereof, which is totally against law. Reference can be made to PLD 1995 Supreme Court page 343 (Shabbir Ahmad--Appellant v. The State Respondent; citation (c) and (d).
17. The upshot of the discussion gone before is that the prosecution has miserably failed to prove its case against tile appellant beyond any shadow of doubt. While giving the benefit of doubt, to the convict-appellant, I allow the appeal, set aside the conviction and sentence passed by the Court below and acquit the appellant. The Criminal Revision filed by the State automatically fails and stands dismissed.