' This criminal appeal filed by Abdur Razzaq son of Bashir Ahmad, resident of Adda Janahgir Abad, Tehsil Kot Addu, District Muzaffargarh, is directed against the judgment, dated 4-3-1996 passed by the learned Additional Sessions Judge, Kot Addu, whereby he has convicted the appellant/accused under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the said Ordinance) and sentenced him to five years' R.I. Whipping numbering thirty stripes and a fine of Rs,5,000 or in default of payment of fine further six months' R.I. He has also convicted him under section 16 of the said Ordinance and sentenced him to five years' R.I., whipping numbering thirty stripes and a fine of Rs,5,000 or in default of payment of fine further six months' R.I.
It has been directed that both the sentences awarded to the accused shall run concurrently.
2. Briefly stated it is the case of prosecution that Mst. Irshad Mai, sister of complainant Muhammad Amin who was sleeping in her house during night between 8th and 9th April, 1992, was found missing in the morning and while he alongwith his father was searching for her, Ghulam Yasin and Mithoo Khan met them and told. Them that they had seen accused Abdur Razzaq and Mst. Irshad Mai during the previous night at about 9/10 p.m. Boarding of a "Dala". On this information, they proceeded to the house of Abdur Razzaq who was not present in the house. However, his father was informed, who promised to return her after a few days but in spite of his promise, he did not return her and hence on 26-4-1992, the matter was reported to the police for registration of the case. Thereafter, during investigation, after about 12/13 days, after the occurrence when the complainant alongwith his mother and sister was passing through the Bazar at Pakpattan. They had heard the call of his sister Mst. Irshad Mai. They saw the appellant/accused was there with his sister Mst. Irshad Mai while accused Abdur Razzaq ran away on seeing them. They brought Mst.
Irshad Mai to their house. The appellant/accused was arrested on 3-8-1992 and after necessary investigation, was challaned to face, the trial.
3. At the trial, the prosecution examined thirteen witnesses in all. P.W.1 is Mitho Khan. He made a deposition about the aforementioned "Dala" hired by Abdur Razzaq for taking his sister for participation in a marriage and thereafter, he saw that one female alongwith two other persons had boarded the "Dala" but as deposed by him he could not identify that female and also could not identify the two persons who had boarded the "Dala" with the female. This witness was thereafter declared hostile and cross-examined. P.W.2 is Ghulam Yasin. He deposed that some person had boarded. The "Dala" but he did not know who was in the "Dala. He was also declared hostile and cross-examined. P.W.3 is Ch. Abdul Majid, S.-I. He partly investigated the case. P.W.4 is Mst. Irshad. She made a statement in the following words:- "About three years before I was sleeping in the house of my parents in the area of Mauza Patal Munda Darmiani. My brother Muhammad Amin was sleeping in another room of the house. At about 9/10 p.m. There was a knock at the door of our house. I opened the door. Accused Abdur Razzaq now present in Court was standing outside. He caught hold of my arm, and threatened me that if I will raise cries I will be killed. After dragging me the accused took me towards the Pacca road. One Dala/wagon was found standing by the road side. Accused put me in that Dala. The wagon started and it reached Adda Dhoori Wala. From Adda Dhoori Wala the accused took me to the house of her sister at Adda Dhoori Wala. Accused kept me there in the house of her sister for 9/10 days. During this period he used to subject me to Zina-bilJabr. The accused then took me to Pakpattan. While he was taking to Bazar in Pakpattan Town, I saw that my brother Muhammad Amin and my mother were there. I gave a call to them. The accused left me and he ran away from the spot. I narrated the whole occurrence to my brother Muhammad Amin and my mother. They took me to the house of my parents. My maternal-uncle was there at the house of my parents. He took me to Karachi. After three months I returned from Karachi. Malik Fateh Khan Awan then took me to the police station. Abdur Razzaq had forcibly abducted me and had committed Zina-bil- Jabr with me. I was medically examined."
' P.W.5 is Muhammad Amin. He is the complainant who reiterated his statement as mentioned hereinabove. He added that after bringing Mst. Irshad Mai to their house, his maternal-uncle took her to Karachi with him because of apprehension from the accused that they may not attack their house. P.W.6 is Ghulam Farid. He was driver of the "Dala" bearing Registration No,DN-6715. He made a deposition in the following words:- "At about evening time I was present at Adda Dhoori Wala. Accused Abdur Razzaq present in Court contacted me and he hired my Dala after telling me that he has to take his sister from Chowk Munda for participation in marriage of his brother at Faisalabad. Rs,150 was fixed as fare of the wagon. Accused Abdur Razzaq took me 4/5 miles ahead of Chowk Munda at Rangpur Road. After leaving me in the Dala by road side, he went away for bringing his sister. Accused Abdur Razzaq then came back with a woman. He and that woman sat in my wagon. I started taking accused Abdur Razzaq and that woman in the Dala, after reaching at Adda Dhoori Wala I demanded from accused Abdur Razzaq that he should give me some surety that actually he is taking away his sister. Since it was night time therefore, I had suspected that the accused was taking some abducted woman with him. Abdus Sattar son of Ghulam Nabi should stood surety that he was taking his sister. After surety of Abdus Sattar I had taken Abdur Razzaq and the woman to Chak No,458 T.D.A. And after leaving Abdur Razzaq and the woman by the roadside, I went back to Adda Dhoori Wala."
' P.W.7 is A.Mir Bakhsh, Constable. He delivered sealed jar and sealed envelope to the Office of Chemical Examiner. Multan in tact. P.W.8 is Fida Hussain, Constable. He stated that he was not a witness in this case. P.W.9 Abdul Aziz, Constable is a marginal witness to the recovery memo.
Exh.P.B. Vide which the Dala was taken into possession by Abdul Majeed, S.-I. P.W.10 is Lady Dr. Fehmeeda Khatoon. She examined Mst. Irshad Mai on 8-8-1992 and made the following observations:-- "There was no mark of violence on any part of her body. Her hymen was torn irregularly and it had old healed marks. Vagina was admitted two fingers."
' She also obtained vaginal swa bs and on the basis of Chemical Examiner's report opined that sexual intercourse had taken place with Mst. Irshad Mai. P.W.11 is Fazal Dad, Inspector. On 3-8-1992 he arrested the appellant Abdur Razzaq in this case. He recorded statement of Mst. Irshad Mai on 6-8-1992 and got her medically examined on 8-8-1992. He investigated the case and after completion of investigation submitted challan against the accused. P.W.12 is Dr. Mian Ghulam Abbas who medically examined the appellant on 3-8-1992 and found him potent. P.W.13 is Shimla Shah, Muharrir. He recorded F.I.R. Exh.P.C. On the statement of complainant Muhammad Amin.
4. The appellant/accused made a statement under section 342, Cr.P.C. Wherein he denied the allegation and pleaded innocent. Replying to a question "why this case against you", he made a statement in the following words:-- "My sister Mst. Mumtaz is married with Muhammad Saleem, brother of the complainant. The complainant party was not allowed us to see my sister. About 15 days before the alleged occurrence in this case I had gone to the house of my brother-in-law Muhammad Saleem.
Muhammad Amin met there. I requested him to send my sister with me as there was a marriage of my elder brother. Muhammad Amin refused to send her with me. Because of that hot words were exchanged between me and Muhammad Amin and then the complainant falsely implicate me in this case."
' He declined to make a statement on oath or produce any evidence in defence.
5. I have heard the learned counsel for the parties and have perused the record with their assistance. It transpires from the record that according to the F.I.R, Exh.P.C., P.W.1 Mitho Khan and P.W.2 Ghulam Yaseen were the eyewitnesses who had informed the complainant that they had seen Abdul Razzaq and Mst. Irshad Mai boarding a "Dala" at 9/10-00 p.m. On the night between 8th and 9th June, 1992. However, in their depositions before the Court both the P.Ws. Were declared hostile. P.W.1 clearly stated that he could not identify the female as well as the two other persons who had boarded the "Dala" with the female. Regarding the hiring of "Dala" by the appellant he stated that it had been hired by him for taking his sister for participation in a marriage. It is pertinent to mention here that sister of the appellant/accused Mst. Mumtaz is married with Muhammad Saleem, brother of complainant. P.W.2 Ghulam Yaseen another alleged eye-witness also did not support the case of prosecution and stated that he did not know who was in the "Dala".
In cross-examination he stated that he had not enquired from the driver who was in the "Dala". He further stated that he had not seen Mst. Irshad Mai in the "Dala". Both P.W.1 and P.W.2 are witnesses of the prosecution and as such their depositions carry considerable weight. The deposition made by Ghulam Farid, driver of the "Dala" reproduced hereinabove also shows that he was told by the appellant about bringing of his sister. He saw that the appellant and that woman sat in his wagon.
In spite of the fact that this P.W. Had suspected that the appellant was taking some abducted woman with him, his statement is not useful to the prosecution as he could not identify the lady boarding the "Dala". In the circumstances when sister of the appellant was married with the brother of complainant, the precise identification of the lady was necessary but the evidence in this respect is not available on the record. Deposition made by P.W.4 who is a star witness in this case is not confidence inspiring. She was a grown up lady of 28/29 years at the time of occurrence but there is nothing in her statement to show that she was forcibly taken by the appellant in "Dala". The appellant/ accused had no weapon with him and she had not raised any alarm at any stage of her abduction. The prosecution failed to record her statement before a Magistrate after her recovery. It is also pertinent that deposition of this P.W. Is not above board and in the circumstances it is not safe to base conviction on her solitary statement. Besides, there is a delay in lodging the F.I.R. For about nineteen days . The explanation given therefor by the complainant is not plausible. Learned counsel for the appellant placed reliance on cases reported as 1995 SCMR pages 1498, 1501, 1639. It is also worth mentioning that neither P.W.4 nor P.W.5 has given the date when she was recovered. It is strange that according to P.W.11 Fazal Dad, Inspector, the appellant was arrested in this case on 3-8-1992 whereas the statement of Mst. Irshad Mai was recorded on 6-8-1992 and she was got medically examined on 8-8-1992. It is not known that when the appellant had run away from the spot, as alleged by P.W.4 and P.W.5, and Mst. Irshad Mai was recovered, how and where the appellant was arrested by P.W.11 on 3-8-1992. P.W.11 has expressed lack of knowledge about her production for recording her statement after her recovery from Pakpattan. It is also pertinent to mention that the prosecution has led no evidence to prove that Mst. Irshad Mai was kept by the appellant at Adda Dhoori Wala. Keeping in view the aforementioned circumstances and critically examining the entire evidence on record, therefore, it is well-evident that disappearance of Mst.
Irshad Mai from her house with the appellant as well as her recovery from him is not established by any independent evidence and the case against the appellant does not appear free from doubt.
6. Consequently, for the reasons stated above, I extend the benefit of doubt to the appellant, Abdur Razzaq son of Bashir Ahmad, allow his appeal, and set aside his conviction and sentences recorded on 4-3-1996 by Additional Sessions! Judge, Kot Addu and acquit him of the charge. He is in jail and he shall be set at liberty forthwith if not wanted in any other case.