' MUNIR A. SHEIKH, J.---Leave to appeal has been sought through this petition against the judgment dated 25-4-1997 of the Federal Shariat Court by which Criminal Appeal No,119/1 of 1996 filed by respondent No,1 against the judgment of the trial Court dated 20-6-1996 through which he was convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to life imprisonment with 30 stripes and fine of Rs,5,000 and in default thereof to undergo further 6 months S.I., was accepted and he was acquitted of the charge whereas Criminal Appeal No,146/1 of 1996 of the petitioner praying for conviction of the acquitted co-accused and Criminal Revision No,30/1 of 1996 filed by him seeking conviction of the respondents under section 10(3) of the Ordinance have been dismissed.
2. Respondent No,1 and others were tried for offence punishable under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the Court of Additional Sessions Judge, Mandi tiaha-ud-Din pursuant to an F.I.R lodged by Noor Muhammad petitioner, father of the victim. The allegation'against them as made out in the F.I.R was that on 30-10-1991 at about morning time, they abducted Mst. Bushra Parveen daughter of the petitioner from the area of village Kolowal, Police Station Malikwal with intent that she may be compelled or knowing it to be likely that she will be compelled to marry against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced toillicit intercourse, and thus, committed an offence punishable under section 11 of the said Ordinance.
3. In order to prove the charge, the prosecution examined nine witnesses. The present petitioner appeared as P.W.1 and deposed that about two years 8/9 months before when he came back to his house after saying morning prayer in the Mosque, his wife Mst. Salamat Bibi told him that Mst.
Bushra Parveen his daughter had gone out to the fields to ease herself but did not return. He became worried and went to search her. When he came on the road side, a bus was standing there and Ghulam Hussain, Muhammad Ashraf, Azam, Zafar Iqbal and Anwar Bibi respondents herein were carrying his said daughter. He saw them boarding the bus. He stated that Ghulam Rasul and Muhammad Raman P. Ws. Informed him that his daughter had been forcibly taken by the respondents to commit illicit intercourse with her. He approached the Police on the same day to lodge the report but was told first to search the abductee, therefore, he explained the delay in lodging the F.I.R which was registered on 3-11-1991 (Exh.PA).
4. Mst. Bushra Parveen while appearing as P.W.2 supported the case as made out by her father in the F.I.R. Besides she stated that she was forced by the respondents to board the bus which was going towards Mandi Bahauddin after which she was put in a car. The respondents threatened her not to make . Noise who took her to Chak No,10 in tehsil Bhalwal where Muhammad Azam and Zafar Iqbal committed Zina-bil-Jabr with her from where she was further forcibly taken to Bhalwal where her thumb-impressions on plain papers were obtained and was carried forcibly to another village where her signatures on a Nikahnama were obtained to which she did not consent from where she was brought back to Chak No,10, Bhalwal and the police recovered her from there on 7-11-1991.
According to her evidence, she was threatened by Raja Muhammad Younas, S.I. Police Station, Malikwal not to depose against the accused party otherwise she would be imprisoned. She was produced before the Magistrate who sent her to Dar-ulAman from where she was again brought to the Court of said Magistrate on 17-11-1991 and on the way she was asked by the police not to make statement against the accused party. According to her, Raja Muhammad Younas, S.I. Was in connivance with the respondents who got them discharged by making a wrong report that no case had been made out against them on which she filed a writ petition before the High Court in which direction was obtained for the restoration of the case pursuant to which she appeared in the Court of Magistrate at Gujrat where she made statement that she was forcibly abducted by the accused party.
5. Ghulam Rasul P.W.3 and Muhammad Ramzan P.W.6 in their evidence supported the version as given by the petitioner in the F.I.R. Shahid Farooq, D.S.P. Headquarters, Gujrat appeared as P.W.4 to whom the inquiry of this case was entrusted. He recorded the statement of the abductee under section 161, Cr.P.C. On 18-6-1992 and her statement under section 164, Cr.P.C. Was also got recorded.
In the light of the said statements, he recommended that the respondents should be challaned and sent up for trial. Muhammad Younas (P.W.5) is a formal witness of the arrest of Ghulam Hussain, Muhammad Ashraf and Muhammad Azam, respondents. Qazi Naseer Ahmad (P.W.7) in his evidence deposed that he recorded the voluntary statement of the abductee under section 164, Cr.P.C. On 18-.6-1992. Muhammad Saleem, (P.W.8) recorded' the complainant's statement on 3-11- 1991 and drafted the F.I.R. (Exh.PA), prepared the site plan (Exh.PC) and recorded the statements of Ghulam Rasul and Muhammad Ramzan on the same day. On 9-11-1991 according to him, the victim appeared before him he recorded her statement under section 161, Cr.P.C.
6. The respondents denied the charges. Respondent No,1 in his statement under section 342, Cr.P.C., however, added that Mst. Bushra Parveen was his wife and that P.Ws. Deposed against him due to enmity. Though the respondents did not appear as witnesses but they relied upon the judgment of the Family Court, Mandi Bahauddin (Exh.DA) passed in a suit filed by Mst. Bushra Parveen, the victim for dissolution of marriage against Muhammad Azam, respondent No,1, copy of the plaint of the said suit (Exh.DC),, copy of the plaint in suit for restitution of conjugal rights filed by respondent No,1 against Mst. Bushra Parveen, attested copy of Nikahnama (Exh.DD) and copy of statement Mst.
Bushra Parveen dated 17-11-1991 recorded by the Magistrate in which she took the plea that she went out of the house of her own to the house of her sister in Phalia and recovered by the police from there.
7. After considering the evidence, the trial Court did not believe the prosecution evidence as regards abduction of Mst. Bushra Parveen. The defence plea as to Nikah of said Bushra Parveen with Azam was also rejected. Muhammad Azam was, however, convicted under section 11 of the Ordinance and sentenced to life imprisonment with 30 stripes and fine of Rs,5,000 in default whereof to undergo further 6 months S.I. Mainly for the reason that in the suit filed by him against Mst. Bushra Parveen for restitution of conjugal rights, he raised a plea that she was his wife as such, performance of sexual intercourse stood proved. The other respondents were acquitted as it was held that the prosecution did not succeed to establish case against them beyond any shadow of doubt.
8. The Federal Shariat Court after examining the prosecution evidence, the plaint of the suit filed by respondent No,1 for restitution of conjugal rights and the fact that Mst. Bushra Parveen's suit for dissolution of marriage had been dismissed and that she had been taking different stands before the Magistrate, High Court and the police, accepted the appeal filed by respondent No,1 and he was acquitted of the charges. Criminal Appeal No,146/1 of 1996 of the petitioner against the acquittal of the other respondents by the trial Court and Criminal Revision No,30/1 of 1996 filed by him seeking conviction of all the respondents under section 10(3) of the Ordinance have been dismissed vide the impugned judgment dated 25-4-1997.
9. The main burden of the argument presented by the learned counsel for the petitioner as regards allegation of Zina-bil-Jabr against respondent No,1, Muhammad Azam was that in the plaint (Exh.DB) of the suit filed by said respondent against Mst. Bushra Parveen, he had admitted to have had sexual intercourse with Mst. Bushra Parveen and his suit having been dismissed on the ground that his Nikah with Mst. Bushra Parveen had not been proved, the offence under section 10(3) of the Ordinance stood proved.
10. We have gone through the judgment of the Federal Shariat Court which has thoroughly dealt With this aspect of the case. It was held that merely because respondent No,1 could not succeed in establishing his valid Nikah with the victim, Mst. Bushra Parveen, did not by itself furnish evidence that sexual intercourse had also been necessarily performed. We have examined Exh.D.C., the plaint of the suit for restitution of conjugal rights in which respondent No,1 did not state that there was sexual intercourse. It, was only pleaded that the victim, Mst. Bushra Parveen started performing her marital obligation. This was a statement in general terms and apart from sexual intercourse, there are many other marital, obligations which a wife was to perform.
11. After going through the evidence, we find ourselves in agreement with the Federal Shariat Court that Mst. Bushra Parveen could not be believed as she was not stating the truth. She had been taking different stands before the Magistrate, High Court and the police. The suit filed by her for dissolution of marriage on the ground that her signatures/thumb-impressions were forcibly obtained, was withdrawn by her and merely because the respondent No,1 was held to have not succeeded in establishing his valid Nikah in these circumstances was rightly held to be not evidence by itself of the offence under section 10(3) of the Ordinance.
12. The findings of the Federal Shariat Court are based on careful and elaborate appraisal of evidence which has not been shown to have either been misread or misconstrued. Law has been correctly applied, therefore, we do not find any substance in this petition which is hereby dismissed and leave to appeal refused.