' ABDUL WAHEED SIDDIQUI, J.---Appellants in Criminal Appeal No,38-P of 1997, namely Khan Muhammad and Mst. Shahida alias Been have assailed a judgment delivered by Sessions Judge, Timergarah at camp Court Chackdara on 5-7-1997 whereby they have been convicted under Article 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereafter referred to as the said Ordinance, and are sentenced to R.I. For 5 years each and fine of Rs,5,000 each. In case of default of payment each one of them shall have to undergo further S.I. For 6 months each. Each one of them is also sentenced to 5 stripes. Khan Muhammad has also been convicted under Article 11 of the said Ordinance and has been sentenced to imprisonment for life and a fine of Rs,10,000 in default of payment he shall have to undergo further S.I. For one year and also 10 stripes. His sentences are to run concurrently. Both of them have been extended the benefit of section 382-B, Cr.P.C.
' The same judgment has also been impugned in Jail Criminal Appeal No,79-I of 1997 by appellants Ikramuddin and Mst. Saeeda wife of Ikramuddin who have been convicted by the same Judgment under Article 11 of the said Ordinance and have been sentenced to R.I. For life imprisonment and of fine of Rs,10,000 each in default of payment of which each one of them is to suffer S.I. For one year.
Each of them has also been sentenced to 10 stripes as well.
2. Mst. Shahida alias Beena complained in writing (Exh.P.W.1) before police on petrol duty on 15-3- 1995 at 1500 hours alleging therein that her father Shah Naeem (P.W.2) and mother Mst. Masoom Jana (P.W.7) are living. Her brothers Nisar and Hussain Khan are also living and are residents of Deh Chat Pat, Chackdara. One year back appellant/accused Mst. Saeeda and her spouse Ikramuddin enticed and defrauded her and took her out of her house towards Karachi and there they used to take her to brothel every day and made her to indulge into prostitution. One day Ali Gul and his friend Khan Muhammad (appellant) came to the brothel. Khan Muhammad happened to be her relative. She requested Khan Muhammad to get her relieved and he also did not like her sitting in the brothel. Afterwards both Ali Gul and Khan Muhammad brought her through some trick to Deh Khandar Mardan. Since she was unmarried she indulged into Nikah with Khan Muhammad with her own consent and Ali Gul became brother in Nikah. Since 6/7 months she is residing in Deh Khandar alongwith Khan Muhammad as her husband. On the previous day, Mst. Saeeda and her husband found them through some source and came to Deh Khandar. Both of them are trying to take her back to Karachi for prostitution through some fraud. She is not ready to proceed to Karachi with them and her husband has gone out for some important work. Out of apprehension she was going to Police Station for report but the police met her on the way and, therefore, she filed the complaint with them.
' In the meanwhile, Shah Naseem Khan (P.W.2) also filed a complaint (Exh.P.W.8/1) on 16-3-1995 at Police Chowki Chackdara alleging therein that this unmarried daughter Mst. Shahida had disappeared from his house about one year and four months back. He had not reported the matter but remained in her search. Now he has come to know that his missing daughter alongwith Khan Muhammad, Ikramuddin and Saeeda have been arrested at Police Station B-Divsion, Mardan. He alleged further that all the three persons had enticed away his daughter for illegal sexual relationship.
' The matter was enquired into under section 156(3), Cr.P.C. Then Murasila was prepared and F.1.R.
Was lodged on 17-3-1995 under Articles 10, 11, 13 and 14 of the said Ordinance. All the appellants in both the appeals were challaned on 26-4-1995. On 6-11-1995 they were charged under Articles 10(2), 11 and 16 of the said Ordinance to which they did not plead guilty.
3. To prove its case, prosecution examined 8 witnesses. Muhammad Jameel (P.W.1), Tehsildar honorary, proved recording of the statement of appellant Muhammad Khan under section 164/364, Cr.P.C. Which is Exh.P.W.1/1. He also gave certificate which is Exh.P.W.1/2. Shah Naseem (P.W.2), father of appellant Shahida has deposed that his daughter was missing since about 7/8 months before his report and he could not report for all this time because he was not knowing as to where and with whom she was. One day before report he came to know that all the appellants were at Mardan. He went there and found them at police station. He brought all of them in a vehicle to Chackdara and lodged report which is Exh.P.A. Since his daughter had given consent for marriage with appellant Khan Muhammad, so he has arranged marriage of both of them, whereas his complaint persists against Ikramuddin and Saeeda who had enticed and taken away his daughter from his house for the purposes of Zina. Fazal Muhammad Khan (P.W.3), S.H.O. Police Station Ouch has deposed that he arrested appellant Muhammad Khan on 23-4-1995 and then after completing investigation he submitted challan on 26-4-1995. Wasil Khan (P.W.4), A.S.I. Has proved chalking out F.I.R. Exh.P.W.1/4 after receipt of Murasila. Liaqat All (P.W.5) A.S.I. Had deposed that on 15-3-1995 while he was on petrol duty alongwith other police personnel around 1500 hours that appellant Shahida accompanied by Malik Hussain Khan met him and Mst. Shahida filed complaint per Exh.P.W.1/5. It was thumb marked by. Both Shahida and Malik Hussain and signed by him. Lady Doctor Ghazalla Rasheed (P.W.6) has proved that on 17-3-1995 she examined Mst. Shahida and found that she had given birth to a child but was not pregnant at that time. Her report in this regard in Exh.P.W.2/6. Mst. Masoom Jana (P.W.7), mother of Mst Shahida has deposed that about two years back Mst. Shahida disappeared during night when all the members of the house were sleeping.
They searched for her and finally came to know that their relative appellant Saeeda had taken and enticed away her daughter for Zina. Then they came to know that her daughter was arrested at Mardan. She is complainant against Mst. Saeeda and Ikramuddin for taking away her daughter and she is also complainant against Khan Muhammad for having married their daughter against the consent of parents. During cross she has admitted that a fresh Nikah was performed at Chackdara as the earlier one was against the consent of parents. Now they are on good terms with their daughter. Sher Ali (P.W.8), A.S.I. Had deposed that he was Incharge of Police Choki Chackdara.
On 16-3-1995 Shah Naseem (P.W.2) came to Choki and filed a report which was inserted into Roznamcha at serial No,13 and in Exh.P,W.1/8. After that he obtained permission from Ilaqa Qazi under section 156(3), Cr.P.C. And went to Mardan for further proceedings where Incharge A.S.I. Of Police Choki Fazal Haq College handed over to him report of Roznamcha about this incident. Later on, he sent Murasila Exh.P.A. For institution of F,I,R. Exh.P.W.3/8. The said A.S.I. Handed over to him appellants Shahida, Saeeda and Ikramuddin who were arrested by him. Then he arranged medical examination of appellant Shahida. He prepared the site plan of the house of complainant which is Exh.P.W.4/8. He recorded statements of the P. Ws.
' In their statements under section 342, Cr.P.C. Appellants Ikramuddin and his wife Saeeda have denied all the allegations against them. About judicial confession of co-accused Khan Muhammad, they have replied that it has been made against them conspiracy as he is relative of the complainant party.
' Appellant Khan Muhammad has replied to a question during statement under section 342, Cr.P.C.
As under:-- {{URDU TEXT}} ' Statement of appellant under section 364, Cr.P.C. (Exh.P.W.1/1 & P.W.1/2) is reproduced here for clarification. {{URDU TEXT}} ' Muhammad Shoab Mulla has stated under section 164, Cr.P.C. That he recited Nikah between appellants Khan Muhammad and Shahida and this statement has been exhibited as D.W.1/1.
Yousuf Khan has corroborated the abovementioned statement as Exh.D.W.1/2 being a witness of Nikah. Muhammad Kareem Khan has also stated on the lines of Yousuf Khan which is Exh.DW-1/3.
' None of the appellants have examined themselves on oath.
4. We have heard the counsel for appellants and State. The counsel for appellants Shahida and Khan Muhammad has contended that had there been the existence of mens rea, Mst. Shahida would not have come forward and reported the matter to the police on 15-3-1995 vide Exh.P.W:5/1; that Mst. Shahida and Khan Muhammad have claimed to be in the relationship of legally wedded spouses and in this connection are corroborated by Shah Naseem (P.W.2), Masoom Jana (P.W.7); that statements of Nikah Khawan Muhammad Shoaib, Yousuf Khan and Muhammad Kareem under section 164, Cr.P.C. Also prove the existence of Nikah between the two; that confessional statement of appellant Khan Muhammad is exculpatory; that reliance has been placed on PLD 1988 FSC 22 and PLD 1985 FSC 397. Counsel for appellants Ikramuddin and Saeeda has contended that there is no evidence on the record to corroborate Mst Shahida that she was abducted by these appellants; that there is no evidence on the record to prove the existence of such a brothel where Mst. Shahida was made to sit as a whore; that Muhammad Jameel (P.W.1) Tehsildar has not produced notification specially empowering him to record statements under section 164, Cr.P.C., and therefore, confessional statement of appellant Khan Muhammad recorded by him cannot be used against appellants Ikramuddin and Saeeda; that an important witness Ali Gul has not even been included in the calendar of witnesses an the challan which indicates that the entire story about brothel is false; that the ingredients of Article 11 of the said Ordinance are not constituted; that reliance has been placed on PLD 1991 SC 567. The counsel for State has supported the impugned judgment and has contended that the prosecutrix is completely corroborated by medical evidence, confessional statement of Khan Muhammad, her father and mother and she is herself guilty of prostitution as she herself deserted the house of-her parents with her own consent and became a tool in the hands of Ikramuddin and Saeeda and being a consenting party she has been correctly convicted.
5. At the outset, we have pondered about the application of Article 11 of the said Ordinance in the circumstances of the case. The said Article reads as under:-- "Kidnapping, abducting or inducing women to compel for marriage etc.--Whoever kidnaps or abducts any women with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or (Abdul Waheed Siddiqui, J)to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine, and whoever by means of criminal intimidation as defined in the Pakistan Penal Code (Act XLV of 1860) or of abuse of authority or any other method of compulsion, includes any woman to go from any place with intent that she may be, or knowing that is likely that she will be, forced or seduced to illicit intercourse with another persons shall also be punishable as aforesaid."
Now trcumstances of the case are such that it appears, prima facie, that Mst. Shahida was neither kidnapped, nor abducted nor was she induced to be compelled for marriage. On the contrary, it appears that she was enticed and taken away by appellants Saeeda and Ikramuddin with intent that she may have illicit intercourse with other persons. We find that the ingredients of section 11 of the said Ordinance are not constituted, however, ingredients of section 16 of the said Ordinance are constituted to the extent of the offence committed by appellants Saeeda and Ikramuddin. Article 16 of the said Ordinance reads as under ' Enticing or taking away or detaining with criminal intent a woman:---Whoever takes or entices away any woman with intent that she may have illicit intercourse with any persons, or conceals or detains with that intent any women, shall be punished with imprisonment of either description for a term which may extend to seven years and with whipping not exceeding thirty stripes, and shall also be liable to fine."
The counsel for appellants Mst. Saeeda and Ikramuddin is correct to the extent that Mst. Shahida was not abducted by them and, therefore, Article 11 of the said Ordinance is not constituted. The complainant herself has not complained of abduction, but rather that of enticement. So far as this enticement and taking away with intent to have illicit intercourse with other persons is concerned, the prosecutrix is completely corroborated by judicial confession of Khan Muhammad. The contention that this judicial confession is coram non judice is misconceived as no suggestion was made to Muhammad Jameel Tehsildar (P.W.1) that his claim regarding notification empowering him to record statements under section 164, Cr.P.C. Was false. So far as conviction of appellant Khan Muhammad under Article 11 of the said Ordinance is concerned, c we find that nowhere in the evidence he has been implicated as such. Consequently, conviction and sentence under section 11 of the said Ordinance as against appellant Khan Muhammad is set aside. The conviction and sentences of appellants Ikramuddin and Mst. Saeeda under section 11 of the said Ordinance are altered to conviction under section 16 of the said Ordinance and they are sentenced to seven years R.I. Each and fine of Rs,10,000 each. In default of payment of fine, each one of them is to suffer S.I.
For one year. Benefit, of section 382-B, Cr.P.C. Extended by the trial Court shall remain intact.
6. So far as the conviction and sentence of appellants Khan Muhammad and Mst. Shahida under Article 10(2) of the said Ordinance is concerned, we do not find any evidence on the record regarding cohabition of the two before Nikah. The judicial confession of Khan Muhammad is exculpatory and the evidence of Shah Naseem (P.W.2) and Masoom Jana (P.W.7) corroborates both the appellants in their plea of defence that they have cohabited after marriage and a daughter is also born to Mst. Shahida after the wedlock. About a married female, positive medical evidence is natural. In the absence of evidence of Zina between these two appellants, their conviction and sentence under Article 10(2) of the said Ordinance is set aside and they are acquitted of the charge and their appeal is allowed. By our short order, dated 17-4-1998 we had directed to release appellant Khan Muhammad from the Jail if not required in any other case.
Appellant Shahida's bail bonds were discharged as she was on bail. These are the reasons for the said short order. The impugned judgment is partly altered and partly set aside as discussed above Criminal Appeal No,38-P of 1997 is allowed and Jail Criminal Appeal No,79-I of 1997 is dismissed accordingly.