1. ' Appellant Bakhsha has been convicted under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, and has been sentenced under the same section to undergo R.I. For 7 years and whipping of 15 stripes and fine of Rs,5,000 in default of payment of the said fine to further undergo for S.I. For 6 months. This very appellant Bakhsha and appellant Mst. Jan tan are also both of them convicted under section 10(2) of the said Ordinance and have been convicted to suffer R.I. For 7 years and whipping of 15 stripes each and fine of Rs,5,000 each and in default of payment to undergo 6 months' S.I. Each. Sentences of appellant Bakhsha have been decided to run concurrently. Benefit of section 382-B, Cr.P.C. Has also been extended.
2. One Ahmed (P.W.3), father of appellant Mst. Jantan appeased at Police Station Saddar. Chiniot on 26-10-1993 at 1-30 p.m. And filed a written complaint, dated 25-10-1993 which is Exh.P.B. The complainant stated that his daughter appellant Mst. Jantan Bibi was married with one Amir about 7 years and 3 months back and from the said wedlock one daughter Mst. Asmat Bibi was born who was 'at that time was of about 4 years of age. Appellant Bakhsha used to come to their house with which Ns married daughter appellant Mst. Jantan started illicit relations and when they came to know about such a situation they prohibited appellant Bakhsha from coming to their house. About 3 months prior to the complaint appellant Mst. Jantan and other housemates were sleeping in the courtyard of the house. When he got awakened at about mid-night he found that appellant Mst.
2. Jantan Bibi was not there. They started her search and during search Shamman (P.W.4) and Ahmad (P.W.3) informed them that they had seen appellant Mst. Jantan climbing truck in the company of appellant Bakhsha early in the morning. Later on the complainant accompanied by witness Shamman and Ahmed went to appellant Bakhsha as a Punchayat and requested him for the return of lady. After some discussion he admitted that he had in fact abducted the appellant Mst. Jantan who refused to return her. Hence the complaint. On the basis of this complaint F.I.R.
3. Was lodged at Police Station Saddar, Chiniot, District Jhang which is Exh.P.B./1. Appellant Bakhsha was arrested on 31-10-1994 by Rab Nawaz Khan (P.W.6) Inspector/S.H.O., Police Station Bhowana who was otherwise declared a proclaimed offender. He was charged on 28-6-1995 under section 16 of the said Ordinance to which he did not plead guilty.
4. ' Later on, appellant Mat. Jantan was also arrested after investigation and then both of the appellants were again charged on 8-8-1996 under section 10 of the said Ordinance, whereas appellant Bakhsha was also again charged under section 16 of the said Ordinance. Both the appellants did not plead guilty.
3. Prosecution examined 7 witnesses. Dr. Faiz Ahmed (P.W.1) has deposed that he examined the appellant Bastia on 2-11-1994 and found him potent for sexual intercourse per Exh.P.A. Rashid Ahmed (P.W.2), Sub-Inspector, has proved that he investigated this case when he was posted at Police Station Saddar, Chiniot. He received warrants of arrest for both the appellants/accused from the Court of Illaqa Magistrate which are Exh.P.W.2/1 and Exh.P.W.2/2 and he authorized Muhammad Nawaz, Constable for execution of the said warrants who submitted warrants unnerved in the Court of Illaqa Magistrate Ahmed (P.W.3), the father of the appellant Mst. Jantan has deposed that about 7 years prior to the occurrence his daughter was married with Amir and out of the wedlock one daughter Mst. Asmat was born who was on the date of the deposition of 9 years of age. Appellant Bakhsha developed illicit relations with his married daughter appellant Mst. Jantan and while he was sleeping with his son and wife in the house and Mst. Jantan was sleeping with her husband Amir in another room in the same house, he got up at mid-night to ease himself and found Mst.
5. Jantan missing from the house while her minor daughter Mst. Asmat was lying on the cot. On the search Shamman and Ahmed P.Ws informed that they had seen Mst. Jantan and Bakhsha boarding a truck at early morning time. Then he along with other person went to the house of Bakhsha where appellant met him and he denied the hand of Mst. Jantan back. They promised to return the lady but later on during a Punchayat in the presence of P.Ws. Shamman and Ahmed, accused/appellant Bakhsha refused to return the lady. Subsequently he got prepared complaint Exh.P.B. From a petition-writer and filed it at Police Station Saddar, Chiniot. While Mst. Jantan was living with Bakhsha, she had given birth to a child from appellant Bakhsha. During cross he has admitted that Shamman P.W.4 is from his brotherhood whereas Ahmad P.W. Is his cousin and his real sister is wife of P.W. Ahmed. He has admitted further that during search at night time he had not gone to the house of Shamman and Ahmad P.Ws. And in fact he was searching his daughter in the Dharies situated near his house up to morning time when he met the P.Ws. He has admitted further that Amir husband of appellant Mst. Jantan had accompanied him in searching his wife but during the whole investigation he never appeared before Police. He has also admitted that on the very first day of the occurrence he went to the house of appellant Bakhsha and 4/5 days afterwards once again he went to his house along with Punchayat. He has also admitted that prior to getting registered the case he never went to the village Kathella Sheikhan, the permanent residence of Bakhsha. However, he went to the village Mathrooma, Tehsil Chariot where Bakhsha was residing during the days of occurrence. He has further admitted that when he went to the family members of Bakhsha who were found present at the Dhari of Yara, he was accompanied by 50/60 persons of his brotherhood and he had taken these 50/60 persons approximately on the 5th day of the occurrence. He has admitted that Riaz is his son but he has denied a suggestion that the minor daughter Asmat which is shown out of the wedlock between Amir and jantan in fact is the daughter of his son Riaz and in fact Mst. Jantan was never married to Amir. He has also admitted that he cannot say as to whether he got recorded in his complaint Exh.P.B. That Amir and Mst.
6. Jantan were sleeping in front of the room. When confronted with Exh.P.B. It was found that the presence of Amir was not shown in the complaint. He has admitted that he had not got recorded in his complaint Exh.P.B. That he found Mst. Jantan missing while her daughter was lying on the cot.
7. He has denied a suggestion that he has improved on his complaint just to show the marriage between Amir and Jantan. He has admitted that he lodged the report Exh.P.B. After about 3 months after the occurrence. To a suggestion he has stated that he produced Nikahnama between Jantan and Amir on the day of lodging the report before the Police. To another suggestion that he had not produced Nikahnama as there was no Nikahnama between Amir and Jantan, he has made denial simplicity. He has denied a suggestion that he has fabricated Nikahnama between Jantan and Amir later on and he has also denied a suggestion that appellant Jantan being a virgin and being sui juris had contracted Nikah with appellant Bakhsha with her free consent against, his wishes and therefore, he had lodged this false case against them. Shamman (P.W.4) has deposed that on the day of occurrence he was going along with P.W.3 Ahmed at about sun rising time from Chariot to their village and reached at Adda Mathrooma and he found both the appellants boarding a truck at that place. They went to their village and found some meeting going on and in that meeting they told Ahmed P.W.3, the father of Jantan, about what they had seen. Thereafter, they accompanied the father of Mst. Jantan to the Village Mathrooma at the residence of parents of appellant Bakhsha and they promised that the lady shall be returned within 3/4 days. During cross he has admitted that he got recorded before Police that he and Ahmed P.W. While returning from Chiniot when reached at Mathrooma Bus Stop they found both the appellants boarding a truck but when confronted with Exh.D.A. (statement under section 161, Cr.P.C.) it was not so recorded. He has also admitted that he got recorded in his statement before Police that he told Ahmed complainant about both the appellants in Punchayat meeting in the village, but when confronted with Exh.D.A. It was not so recorded about meeting in the Punchayat. He has also admitted that he had not recorded in his statement before Police that he and Ahmed P.W. Were going from their village to Chariot when they saw both the appellants, but when confronted with Exh.D.A. It was so recorded.
8. To a suggestion he has denied that he got recorded with Police that he told Ahmed, complainant, about both the appellants while present at Jhang-Chiniot Road, but when confronted with Exh.D.A.
9. It was so recorded. To a suggestion he has stated that he does not remember whether he stated before Police that he along with complainant Ahmed and other persons went to Dhari Yara where parents of appellant Bakhsha met them and Yara promised to return Mst. Jantan within few days, but when confronted with Exh.D.A. It was not so recorded. Muhammad Zafarullah, H.C. (P.W.5) has proved the recording of F.I.R. Exh.P.B./1 by him on the basis of receipt of complain Exh.P.B. Rab Nawaz Khan (P.W.6) Inspector/S.H.O. Police Station Bomana has deposed that on 31-10-1994 he arrested appellant Bastia who was previously declared proclaimed offender in this case and he got his physical remand and sent him to judicial lock-up. Thereafter, he prepared the challah. Muhammad Nawaz (P.W.7) A.S.-I., is the first Investigation Officer. He has deposed that on the date of occurrence he received the file, reached spot, recorded statements of Shamman and Ahmed son of Raja, P.Ws., prepared rough site pip Exh.P.C., tried to search the appellants accused but failed.
10. During cross he has admitted that he never recorded statement of Amir, the alleged husband of appellant Mst. Jantan. He has further admitted that neither a birth certificate nor a mid-wife was produced before him in proof of any child born from Mst. Jantan nor Nikahnama or Nikah Khawan was produced in proof of the marriage of Jantan with Amir. In their statements under section 342, Cr.P.C. Appellants have claimed a valid marriage on the basis of free consent of the lady who was sui juries on the date of Nikah and out of this valid marriage a child was also born. Questions Nos.6, 7 and 8 and the replies by appellant. Jantan are relevant which are reproduced here:-- Q.6. It is in evidence that you were legally married with Amir son of Turaij, Caste Muslim Sheikh resident of Kot Lal and as a result of that marriage, you had given birth to a daughter namely Mst.
11. Ismat Bibi on 10-12-1987 at Kot Lal, Tehsil Chiniot. What you say about it?
12. Ans. It is incorrect. Mst. Ismat Bibi is the daughter of my brother Riaz and Mst. Sardaran. Entries in record of Union Council No,65 are bogus. Q.7. It is in evidence that you filed suit for cancellation of Nikah on 2-8-1993 in the Court of Judge, Family Court, Mandi Baha-ud-Din against your husband Amir son of Turaij which was dismissed due to non-appearance before Court vide Fxh.P.D. And Exh.P.E. What you say about it?
13. ' Ans. It is incorrect. I never filed any suit for dissolution for marriage as my Nikah was never performed with Amir son of Triage.
14. ' Q. Why this case against you and why the P.Ws. Deposed against you?
15. ' Ans. I am lawful wedded wife of my co-accused Bakhsha. Complainant party has prepared forged Nikah showing him to be wife of Amir. 1 contracted marriage with my co-accused Bakhsha with my free consent and due to that grievance complainant party had involved me in this case falsely. I have given birth to a child about 3/4 years back out of wedlock with Bakhsha my co-accused.
16. ' Both the appellants have declined to be examined on oath. They have not produced any defense as well.
4. I have heard the counsel for appellant as well as State. Appellant's counsel has contended that the F.I.R. Is delayed by three months; that the prosecution has failed to prove previous Nikah with Amir and birth of a child from the said Nikah; that there are substantial contradictions in the complaint and the deposition of complainant Ahmed (P.W.3); that there are dishonest improvements in the depositions of P.Ws; that the existence of a valid marriage between the two appellants is more probable than the relationship of Zina; that in case conviction is maintained the parentage and other ancillary matters of the two innocent children is at stake and it shall produce multiplicity of litigations to the peril of two infant children; that P.Ws. Are related inter se and are interested to destroy a related lady appellant Jantan; that section 16 of the said Ordinance is not attracted. The counsel for State has conceded that this is a fit case for grant of the benefit of doubt.
5. At the outset this case' appears to be a fabrication of the father of appellant Mst. Jantan in consultation with other relations so as teach a sui juries female a lesson that in spite of the fact that she has a legal right to act independently, yet she has no right of choosing her own spouse or indulge into a contract with her own free-will. First of all it is mysterious to note that the alleged first husband of Mst. Jantan namely Amir is missing throughout investigation and trial. In the complaint (Exh.P.B.) he has been shown as husband of Mst. Jantan, but no reference is made to his presence in the house on the night of occurrence. Complainant Ahmed (P.W.3) has clearly improved on this circumstance while deposing that Mst. Jantan was sleeping with her husband Amir in another room. The first Investigation Officer Muhammad Nawaz (P.W.7) has admitted that Amir, the alleged husband of the abductee Mst. Jantan, had not got recorded his statement and even Nikahnama or Nikah 'thaw= were not produced before him. Rashid Ahmed (P.W.2) S.I.P., the second Investigation Officer is also silent about this aspect. Then comes the issue of the parentage of the infant daughter Mst. Asmat Bibi who is alleged to be the outcome of the wedlock of Amir and appellant Jantan. The mystery here is that in the complaint her age is shown to be four years on 25-10-1993.
17. On the date of deposition of complainant (P.W.3) i,e, on 8-8-1996 she should be of seven, but mysteriously she is declared as that of about nine years of age during examination-in-chief. He has not spoken a single word about Asmat Bibi being left behind by her alleged mother in the complaint (Exh.P.B.), but in the deposition he is saying so. His dishonesty becomes evident when it is found that in the complaint he is stating:- {{URDU TEXT}} ' This piece of evidence indicates that appellant Jan tan Bibi was sleeping in the courtyard of the house along with other family members. In material contradiction with this statement, the complainant (P.W.3) is deposing: "About 3 years back I alongwith my son and wife were sleeping in my house whereas Mst. Jan tan along with her husband Amir were sleeping in another room in the same house". Ahmed (P.W.3), the complainant father of appellant Jan tan is not at all inspiring confidence. Complaint (Exh.P.B.) and F.I.R. Have been lodged about three months after the alleged incident for which no explanation is coming forward except that the complainant party was trying to get back the lady failing which they fabricated the story to rope in the couple living happily as validly married spouses and spoil their life along with a child who was carried by appellant Jantan in her womb. This is a clear case of fabrication and dishonest depositions to which even the learned counsel for State has also conceded.
18. ' I had already acquitted the appellants by my short order. These are the reasons for the said order.