' This appeal is directed against judgment, dated 22-10-1998, by Additional Sessions Judge, Faisalabad, whereby learned Judge had convicted Bashir Masih (appellant) under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to undergo R.I. For seven years and to pay a fine of Rs,20,000 in default whereof to undergo S.I. For six months.
' Both the appellants i,e, Bashir Masih and Mst. Najma Bibi, were convicted under section 10(2) of the said Ordinance also. Each of them was sentenced to undergo R.I. Ten years and to pay a fine of Rs,20,000 each in default whereof to undergo S.I. For six months each.
2. Safdar Masih, Bashir Masih son of Barkat Masih and Mst. Mukhtaran Bibi, mother of Bashir appellant, who were tried alongwith, the convicts were acquitted vide the same judgment.
3. In this case, occurrence had allegedly taken place during night between 12/13-8-1995, in the area of Chak No,94/G.B. At a distance of 5-1/2 miles from Police Station Tarkhani in District Faisalabad, ' F.I.R. Exh.P.B. Was registered at the police station by Manzoor Hussain, M.H.C. (P.W.4) on 21-8-1995 at 6-15 p.m. On submission of application Exh.P.B./1, by Mst. Saleeman Bibi (P.W.5) before the S.H.O., 4 on the same day.
' According to F.I.R. Bashir son of Rahmat Safdar alias Sahib, Mst. Mukhtaran Bibi and Bashir son of Rahmat, used to visit the house of the complainant being relatives.
' Mst. Mukhtaran Bibi had come to the house of the complainant on 12-8-1995 at 5-00 p.m. While 'she was in conversation with Najma Bibi (appellant herein) complainant went out of the house for easing herself. When she returned Mukhtaran had left. Complainant slept in the Courtyard of her house alongwith her daughter Najma Bibi and Saleeman Bibi, mother-in-law. On, awaking, in the morning, she found Najma Bibi missing. She looked into the house for Najma. She was not there.
She saw a suit-case lying open. On checking she found a sum of Rs,8,000 and a pair of golden ear rings missing. She sent for Irshad, brother of her husband and told her about Najma's missing. They went out in search of her towards the fields, when they reached at the bus stop theycame across James Masih. He told them that he had seen Najma Bibi alongwith Bashir, Safdar alias Sahib and Mst. Mukhtaran, boarding a bus for Lahore, which left the bus stop at 3-30 a.m. He told them that Ashraf Masih had also seen them boarding the bus. Whereafter both i,e, Saleeman and Irshad went to the house of Mukhtaran Bibi and told her that her son had enticed away Najma and had taken away cash and ornaments also. She confessed mistake of her son and promised to return Najma within a week. Complainant alleged towards the end of the F.I.R. That she (Mukhtaran) had refused, that day, to return her daughter. She prayed for redress of her grievances.
4. After registration of case investigation was entrusted to Mukhtar Ahmad, S.-I. He visited the spot prepared site plan, recorded statements of the witnesses, and raided the houses of the accused for arrest, but he failed to arrest any one of them. On his transfer, case was entrusted for investigation to Sher Muhammad, S.-I. (P.W.9). He arrested Bashir Masih (appellant), Safdar Masih and Mukhtaran and Najma Bibi on 28-9-1995, after rejection of their bail petition. He got Mst. Najma Bibi and Bashir Masih medically examined. He also effected arrest of Bashir son of Rehmat. After completion of necessary investigation, he got the challan submitted to Court.
5. Statements of the nine P. Ws. Were recorded at the trial.
6. Mst. Saleeman Bibi while appearing as P.W.5 although repeated the facts, given by her, in the F.I.R., but made alteration in the sequance of the steps taken by her while being in search of Najma.
In that, she stated that she had searched the house alongwith Irshad. After they had met James Masih and Ashraf Masih and had thereafter gone to the house of Mukhtaran. Another change which she made at the trial was that instead of stating that she had sent for Irshad, she declared that she had herself gone to his house. During cross-examination, she stated that sister of James Masih was married to the brother of Bashir son of Barkat Masih. However, she expressed lack of knowledge about a quarrel having taken place between Bashir Masih and sister of James Masih.
She admitted that her daughter Najma Bibi (appellant) had solemnized Nikah with Bashir (appellant). She stated that Mukhtaran Bibi accused was daughter of her father's sister. She denied the suggestion that she had made a false statement.
7. Irshad Masih (P.W.6) brother of husband of complainant, stated that Saleeman Bibi had come to his house and had told him that Najma was missing and that a sum of Rs,8,000 and ear rings were also missing. He stated that he went in search of Najma alongwith her and that while they were returning to the village they had met James Masih and Ashraf Masih who told them, that they had seen Najma in the company of Bashir Masih (appellant), Bashir Masih son of Barkat and Mukhtaran, boarding a bus bound for Lahore at 3-30 a.m. He corroborated the statement made by Saleeman that they had gone thereafter, to the house of Mukhtaran Bibi who had promised to return the girl within 4/5 days. While answering different questions she stated as follows:-- "Thereafter, we again visited the house of Mukhtaran accused after expiry of 4/5 days. It was time of 10-30 a.m. On our first visit to the house of Mst. Mukhtaran Bibi, my niece Mst. Naima accused had contracted Nikah with Bashir son of Rehmat Masih."
' He stated that he had not visited the police station and his Bharjai had only gone there.
8. James Masih (P.W.7) stated that he had seen Najma Bibi boarding a bus from bus stop of their village at 3-0 a.m. Alongwith Bashir son of Rehmat, Bashir (appellant), Safdar, Mukhtaran. He stated that at the same time, Irshad and Saleeman Bibi, met them and when we asked them, the reason of their presence they told that Najma was missing, on which we informed, that we had seen Najma Bibi going in the company of the other accused. During cross-examination, he stated that Saleeman Bibi was his Phuphizad. According to him, his house was at a distance of one Ihata from the house of Saleeman Bibi. According to him, there was no bus, stop in front of his house and the same was situated at a distance of 1-1/2 squares from his house. He admitted that it was pitch dark at the time of 3-30 a.m. He denied the suggestion that he had made a false statement.
9. Mukhtar Ahmad, S.-I. And Sher Muhammad S.-I., who had investigated the case on different days appeared as P.W.8 and P.W.9 and gave the details of investigation, done by them. Sher Muhammad during cross-examination admitted that Bashir son of Rehmat Masih and Najma had taken plea, before him, at the time of arrest, that they had embraced Islam and had entered into Nikah also. He also admitted that accused had converted to religion of Islam and had named themselves as Shaukat and Amna Bibi. In answer to another question he admitted that he had not investigated the defence plea, as while making statement they had not produced any document in support of their plea.
10. Appellants as well as the remaining accused during statements under section 342, Cr.P.C., denied the prosecution case and pleaded innocence.
' Bashir Masih stated as follows in answer to question "why the P.Ws. Deposed against you":-- "As I had contracted marriage with accused Mst. Najma Bibi against the consent of her parents so I alongwith my relatives/co-accused were falsely involved in this case."
' Najma Bibi stated as follows in answer to question "why this case against you":-- "Complainant party is closely related to me so they have falsely deposed."
' They examined in defence Hafiz Fazal Karim as D.W.1 and produced Nikahnama Exh.D.A.
' Hafiz Fazal Karim stated that Shaukat and Amna accused present in Court were known to him. He declared that both of them had embraced Islam at the hands of Qari Muhammad Amin, District Khateeb. He had performed the Nikah both of them on 15-8-1995. He added that at the time of Nikah Mst. Amna was represented by her brother Shahbaz Masih also. He declared that Nikahnama Exh.D.A. Was the same which had been prepared after the marriage. He certified that his signatures appeared at Exh.D.A./1. During cross-examination, he denied the suggestion that he had either not solemnized Nikah or had done the same to save the spouses from the clutches of law.
11. I have gone through the evidence with the assistance of learned counsel for the parties and considered the contentions raised by both of them.
12. In this case, prosecution had not produced at the trial any witness to state that he had seen both the appellants committing Zina. The only evidence which the prosecution produced at the trial and relied upon, are, the statement of Mst. Saleeman Bibi, who had lodged the F.I.R.; Irshad who had accompanied her for searching Najma and James Masih, who claimed to have seen Najma Bibi boarding a bus bound for Lahore alongwith her co-accused on 3-30 a.m. Of course, Mst.
Saleeman Bibi and Irshad also stated that James had told them of having seen Najma Bibi boarding bus in the company of the accused.
' Statements of Mst. Saleeman Bibi and Irshad that Mst. Mukhtaran had admitted before them that her son Bashir Masih had enticed away Najma is not relevant, for deciding this appeal as Mukhtaran Bibi herself was acquitted and neither the State nor the complainant has filed any appeal against that.
13. James Masih is first cousin of the complainant. That being so, Najma was his niece. Had he seen Najma boarding a bus alongwith accused at an odd hour i,e, 3-30 a.m. He would have definitely questioned the accused or at least Najma as to why at that time she was going with them, but he did not do any such thing. Even if he had failed to do that for any reason he would have gone to the house of Saleeman Bibi at the first opportunity to inform her, as to what he had seen, but he did not do that either. His statement, in that regard, does not find corroboration from another source as Ashraf the other person named to have seen Najma boarding a bus alongwith accused was not examined at the trial. The statement of James Masih, thus, does not fortify the case of the prosecution.
14. The statements made by Irshad and Saleeman Bibi are also at variance on certain points.
Actually, Mst. Saleeman Bibi had made statement in a different contone at the trial, other than she had got written the facts in the application on the basis of which F.I.R. Was recorded. Learned trial Judge had specifically noted those points and had made that fact, one of the major defects warranting acquittal of the three accused. Both these witnesses, during cross-examination, admitted that Najma had contracted Nikah with Bashi Masih. Actually, Irshad stated during cross- examination that this fact had come to their knowledge on their first visit to the house of Mukhtaran. It means that this fact had come to the knowledge of the complainant as well as Irshad P.W., before this case was registered. Withholding this fact by the complainant, while lodging report casts repercussions on her status as a witness.
15. Both the appellants, in this case, had taken up the plea, at the trial, that they had embraced Islam and had contracted marriage. They had taken the same plea at the time of their arrest also.
Sher Muhammad, S.-I., P.W.9, who admitted this fact conceded during cross-examination that he had not investigated the plea taken by these two accused. As against that appellants examined in defence Hafiz Fazal Karim, who had performed their Nikah and produced the Nikahnama as well.
16. Hafiz Fazal Karim while appearing as D.W.1 stated that both of them i,e, appellants, had embraced Islam at the hands of Qari Muhammad Amin, District Khateeb and that he had performed their Nikah regarding which Nikahnama Exh.D.A. Was prepared. He certified his signatures on that Nikahnama. He also disclosed that Shahbaz Masih, brother of Amna (Najma) was present at the time of Nikah and had attested the same, prosecution could have easily named him as P.W. Even if they had failed to do that they could have requested to examine him as C.W. To disprove the factum of performance of Nikah inter se vide by the appellants.
17. The finding of the learned Judge that plea was not acceptable as both of them had failed to produce evidence of embracing Islam was not well-placed. No such proof is required unless somebody makes an allegation that declaration was being made falsely. Since appellants had produced Nikah Khawan as well as Nikahnaina which was not challenged by the prosecution before the proper forum there is no cogent reason to discard the same.
18. As a result of the above discussion and enunciation evidence I am convinced that the prosecution had not been able to bring home the charge against the appellants beyond reasonable shadows of doubt. The appeal, filed by them is, therefore, allowed. They shall be released forthwith if not required in any other case.