' This judgment will dispose of Criminal Appeal No,605 of 1999 filed by Babar Zafar, Mazhar Hussain and Nasir Hussain appellants, who were convicted and sentence by learned Special Judge, Anti- Terrorism Court, Sargodha Division Sargodha vide his judgment dated 12-6-1999 to undergo 10 years R.I. With a fine of Rs,10,000 each and in default of payment of fine, to undergo R.I. For six months under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
' All the 3 appellants were also convicted and sentenced under section 7 of the Anti-Terrorism Act, 1997 to undergo 10 years R.I. With a fine of Rs,10,000 each and in default of payment of fine to undergo R.I. For six months. Both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as disclosed by Shaukat Nazir, complainant (P.W.7) in complaint Exh.P.B./1 are that on 29-10-1998 at about 7-45 a.m. When Mst. Aneeqa Shaukat daughter of complainant went to college in Suzuki van No,2742/MIA, she was encountered by a Suzuki car in which Babar Zafar alnogwith 3 others persons duly armed with pistols were sitting. All the accused forcibly dragged Mst. Aneeqa Shaukat from the van and put her into the car and went towards Canal Park.
Occurrence was witnessed by lftikhar Ahmad, Muhammad Afzal and Muhammad Hayat.
3. On receipt of copy of the FIR., Muhammad Anwer Khan, Sub-Inspector (P.W. 10) went to the place of occurrence where complainant Shaukat Nazir, Muhammad Hayat, Muhammad Afzal, Iftikhar and Muhammad Amin Sadiq were present. He recorded their statements under section 161, Cr.P.0 Punctured car No,5457/SGF was found parked on the side of the road while Babar Zafar and Mazhar Hussain accused appellants were present their. Aneeqa Shaukat was also present in the said car. Investigating Officer alongwith Muhammad Hayat and Muhammad Yousaf arrested the said two accused and also rescued Aneeqa from their custody. Rifle Exh. P.1 with two magazines Exhs.P.2 and P.3 with 23 live bullets, P.4/1-23 were taken into possession vide memo. Exh. P.C.
Bandolier Exh. P.6 alongwith pistol cover Exh.P.7 containing .30 bore pistol P.8 and its magazines P.9/1-4 were taken into possession vide memo. Exh.P.D. Investigating Officer also took into possession the car alongwith registration book vide memo. Exh. P.E. Mst. Aneeqa Shaukat refused to get herself medically examined on production before the Woman Medical Officer. On 16-11-1998, Ghulam Murtaza, driver of Wagon No,2744/MIA produced the said wagon which was taken into possession vide memo. Exh.P.J. Investigating Officer also arrested Nasir Hussain, appellant on 20-11- 1998. Investigation was partially conducted by Muhammad Ashraf, Inspector (P.W.5) who added section 7 of the Anti-Terrorism Act, 1997 on 5-11-1997.
4. After completion of the investigation, all the three accused appellants were challaned to face the trial.
5. Prosecution in order to prove its case produced 10 witnesses in all. Iftikhar Ahmad (P.W.3) and Muhammad Hayat (P,W,8) and M. Amin Sadiq. (P.W.9) were the eyewitnesses. Lady Doctor Rehana Rasheed, Woman Medical Officer was examined as P. W. I Mst. Aneeqa Shaukat as P.W.2, Iftikhar Hussain Head Constable P.W.3, Muhammad Hayat Head Constable, P.W.8, Muhammad Ashraf, Inspector, P.W.5 and Ghulam Hussain, Constable as P.W.S. P.W,7 was the complainant.
' Thereafter, statements of the appellants were recorded under section 342, Cr. P C ' Learned counsel for appellants have read before me the prosecution evidence, statements of appellants and submit that F.I.R. Was lodged with due deliberation and consultation rather through a written application and that complainant is not an eye-witness in this case. Further submit that main witness of the prosecution was driver of the wagon but he was neither cited as a witness nor was examined before the trial Court and that it was the story of the prosecution itself that Aneeqa Shaukat, the alleged victim used to accompany other girls in the said wagon but none of the girls was either cited or examined at the trial. Further submit that none of person from the nearby houses was examined by the prosecution so that independent evidence could have been brought on record. Learned counsel submit that Muhammad Hayat (P.W.8) and Muhammad Amin Sadiq (P.W.9) are close relations of the complainant and moreover, they were resident of far off places but they told lie before the trial Court that they had shifted to the place of occurrence some time before the occurrence. Further submit that it was the prosecution case that Mst. Aneeqa Shaukat was dragged from the wagon and forcibly put into the car by the accused but neither any of her cloth was torn nor she received any injury and that despite her custody with appellants from 29- 10-1998 to 4-11-1998 even not a scratch was found on her body. Learned counsel submit that according to statement of Muhammad Anwar Khan (P.W.1) S.1. He apprehended the appellants alongwith Mst. Aneeqa Shaukat but according to her statement when she was apprehended before that her hands and eyes were tied and closed with cloth. No cloth or string or rope were taken into possession by the Investigating Officer. It was not the story of prosecution that Mst, Aneeqa Shaukat made any hue and cry from the date of her abduction till her recovery. Learned counsel adds that one of the accused, according to prosecution story, namely Aftab Ali is still a Proclaimed offender. Aneeqa Shaukat, according to learned counsel, had admitted during the cross-examination that she did not know his name nor could tell the weapon which he was carrying. Learned counsel for appellants further submit that in fact there was love affair between Babar Zafar and Aneeqa Shaukat. She had written love letters to Babar Zafar and also sent her photos which were alongwith other college fellows. Babar Zafar, appellant had submitted those letters and photographs before the trial Court and the same were exhibited. Learned counsel submit that in fact a false case has been got registered by Shaukat Nazir P.W. At the behest of Irshad Bhalli because he wanted to marry his son with Aneeqa Shaukat. Further submit that according to site-plan which has not been exhibited but was prepared by the Investigating Officer without scale and judicial notice of the same can be taken according to which the road which leads from the house of Aneeqa Shaukat is towards west while occurrence had taken place on the other side that is, towards the east. Learned counsel for Nasir Hussain, appellant submits that nothing incriminating was recovered from Nasir Hussain. All the learned counsels lastly submit that in order to get this case to be tried by Anti-Terrorism Court, section 7 of the Anti-Terrorism Act, 1997 was added maliciously as the offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not a schedule offence.
8. On the other hand, learned counsel for the state assisted by learned counsel for the complainant submits that it was a case of promptly lodged F.I.R., there was no background of enmity between the parties, Aneeqa Shaukat is star witness of the prosecution, she has implicated all the appellants in this case two appellants were apprehended alongwith Aneeqa Shaukat, arms were recovered from Babar Zafar and Mazhar Hussain, although Muhammad Hayat and Amin Sadiq (P.Ws.) are closely related to complainant but they had no animus with the appellants and that the prosecution has proved its case beyond any shadow of doubt against the appellants. Learned counsel submits that conviction and sentence awarded by the trial Court may be maintained in the facts and circumstances of the case.
9. I have heard learned counsel for parties at great length and have gone through the evidence recorded by learned trial Court. In the instant cases, Aneeqa Shaukat (P.W.2) is star witness of the prosecution. Written love letters and also three photographs were produced by Babar Zafar, appellant. Specimen of writing of Aneeqa Shaukat was taken on the request of Babar Zafar, appellant but the learned trial Court did not sent the same to the Handwriting Expert though made observation in para.15 of its judgment that there was understanding between Babar Zafar, appellant and Aneeqa Shaukat. According to Aneeqa Shaukat, she was dragged from wagon and put into the car forcibly but there was not even a single scratch on her body. It is strange to note that driver of the wagon who could have been termed as a star witness of the prosecution was neither cited nor examined by the prosecution. It was the duty of the Investigating Officer to have joined the driver of the wagon so that actual facts could have come to light before the trial Court.
This shows mala fide on the part of the prosecution and the presumption is that had he been examined by the prosecution, he might not have supported the prosecution case. Story of the prosecution was that Aneeqa Shaukat victim used to go alongwith other girls in the said wagon but strangely enough none of the girl was examined by the prosecution. Occurrence has taken place in a thickly populated area but not a single independent witness was produced from the locality by the prosecution. Two eye-witnesses namely Muhammad Hayat and Muhammad Amin Sajid P.W.8 and P.W. 9 are related to the complainant. They claimed to be resident of the place of occurrence but if one goes through their statement which have also been read before me, it is apparently clear that they were not resident of the place of occurrence and were creating false circumstances to show them as resident of the place of occurrence. So, I do no believe the statement of P.W.8 and P.W.9. Furthermore, after apprehension of the appellants no identification parade was held in this case and that Aneeqa Shaukat failed to tell the name of fourth accused, who according to prosecution has not been arrested till today. She also did not mention the weapon which the fourth accused was carrying at the time of occurrence. If there was any bad intention of the appellants they must have done something with Aneeqa Shaukat and even according to the prosecution though she remained with the appellants from 29-10-1998 to 4-11-1998, she was not maltreated in any way. The victim did not raise any alarm at the time and place when she was allegedly abducted and also did nothing during the intervening period, she remained with the appellants.
10. It is established on record, that there was love affair between Zafar Babar appellant and Aneeqa Shaukat. Love letters and photographs, as mentioned earlier were dully exhibited before the trial Court, so possibility cannot be ruled out that Aneeqa Shaukat has implicated the appellants at the behest of his father and Irshad Bhali, who is maternal uncle of Aneeqa Shaukat as suggestions were put to Aneeqa Shaukat and Shaukat Nazir complainant that in fact, Irshad Bhali wanted to marry his son with Aneeqa and he was the person behind the scene. It is also worth mentioning that in "Karwai'', police there is no mention of section 7 of the Anti-Terrorism Act, 1997. Section 7 has been added later in order to make this case triable by Anti-Terrorism Court as section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not a scheduled offence. I am at pain to note, that investigation was not conducted in this case up to the mark because it was the duty of the Investigating Officer to have recorded the plea of Babar Zafar appellant and should have brought on record the love letters and photographs alleged written by Aneeqa Shaukat to Babar Zafar appellant, so that actual facts could have come to light during the investigation and the trial Court could have decided the case on the basis of true facts.
11. Irresistible conclusion of the aforesaid discussion is that prosecution has failed to prove its against the appellants beyond any shadow of doubt, so while extending the benefit of doubt, I accept this appeal, set aside the conviction and sentence awarded to the appellants by the learned trial Court and acquit them of the charge. Appellants are in Jail. They shall be released forthwith if not required in any other case.