' By this appeal, the appellants have challenged the judgment passed by Additional Sessions Judge, Liaquatpur on 6-3-2000 whereby he found them guilty of the charge under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced them to undergo R.I. For a period of five years, in addition to payment of fine of Rs,10,000 each. In case of default of the payment of the amount of fine, the appellants were ordered to suffer further R.I. For one month each. They were also sentenced to suffer thirty stripes each. Benefit of section 382-B, Cr.P.C. Was extended to them.
2. The relevant facts of the case are to the effect that Mst. Maryam who was a widow of Abdul Rashid for a period of about 10/11 years, had again married with Abdul Karim, the complainant in this case. Mst. Maryam had left her house for meeting her daughter (from the first husband Abdul Rashid) in Tibbi Jhullan. While on her way, at a distance of about 2/4 acres from the house of her daughter, four accused persons who were hiding in a Khandar took her forcibly against her wishes in a garden. The four persons are identified to be the accused/appellants Ghazi, Ghulam Qadir, both sons of Karim Baldish, Saeed Ahmad son of Sohnay Khan and Ghulam Qadir son of Gamoon.
' Further plea of the prosecution was that Mst. Maryam was raped by accused Mari ha the garden where she was made to stay with accused Ghazi for a period of 4/5 days while the co-accused remained at guard.
' It was further case of the prosecution that thereafter from the garden she was taken by the accused persons and brought to Court premises. She was photographed and an affidavit to the effect that she was contracting marriage with accused Ghazi of her own freewill was sworn by her.
The said affidavit was attested by the Oath Commissioner D.W. Rana Shaukat Ali Khan, Advocate.
' While in Court premises, her cousin Muhammad Siddique and her son Ghulam Muhammad appeared and on seeing them the victim lady ran towards them and in their company returned back to her house.
' Complainant Abdul Karim subsequently, moved an application to D.S.P. For registration of his report against the accused persons as the S.H.O. Had initially declined to register the F.I.R. The police during investigation arrested all the four accused and after completion of the investigation produced the challan of the case.
3. The trial took place in the Court of Mr. A.D. Khalid, Additional Sessions Judge, Liaqatpur. All the four accused were charged with the offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 while accused Ghazi alone was charged additionally with the offence under section 10(3) of the same Ordinance. All the appellants/accused pleaded not guilty.
4. The prosecution examined P.Ws. Abdul Karim, Mst. Maryam, Muhammad Siddique, Lady Dr. Khadija, Dr. Muhammad Iqbal Javed and the formal police witnesses.
5. In their statements under section 342, Cr.P.C. All the accused denied the allegation of abduction of Mst. Maryam and also commission of Zina by accused Ghazi. They further pleaded that Mst.
Maryam of her own accord had come to the Court premises where she had executed affidavit showing her willingness to marry, with accused Ghazi. They further claimed that she was neither abducted nor subjected to Zina by anyone including accused Ghazi.
6. From the side of the defence, accused persons examined D.W. Sultan Ahmad, a stamp vendor who stated that Mst. Maryam herself had purchased the stamp paper on which the affidavit was written and that it bore the photograph of Mst. Maryam. He stated that he had obtained her thumb-impression on the back of the stamp paper Exh.D.I. He also identified the photograph as Exh.D.I./1.
' The other defence witness examined by the accused persons was Jan Muhammad Iqbal Jhullan, Advocate of Liaqatpur, who had himself got the affidavit of Mst. Maryam executed. He stated having read over the contents of the affidavit to Mst. Maryam who had thumb-marked the same after having admitted the contents to be correct. Mr. Jhullan further stated that the identifier of the lady, Saeed Ahmad son of Sohnay Khan was previously known to him.
' The third witness from the side of defence was Rana Shaukat Ali, Advocate from Liaqatpur who was the Oath Commissioner.He deposed that Mst. Maryam had sworn the affidavit in his presence and he had attested the same after she had admitted the contents of the affidavit.
7. The victim Mst. Maryam at the first instance refused to get herself medically examined but after a period of about two months she was produced before the lady Dr. Khadija who observed no mark of violence and struggle on the body of Mst. Maryam. Further she observed that Mst. Maryam was a married lady and her vagina admitted two fingers. Thus, the medical evidence did not corroborate the allegation of commission of rape on her.
' P.W. Muhammad Siddique and P.W. Abdul Karim were not the eyewitnesses. They did not either witness the forcible abduction by the accused nor the commission of Zina. Therefore, on the point of commission of Zina, there was the solitary word of the victim Mst. Maryam but the same was not reliable having any support from the circumstances of the case. The charge under section 10(3) of the said Ordinance was, therefore, rightly discarded by the learned trial Court. The State or the complainant did not challenge the finding of the Trial Court acquitting accused Ghazi from the charge of commission of Zina. As regards the abduction of the lady, as already observed, that on the point of abduction, there was no evidence of any eye-witness and there was mere word of the victim Mst. Maryam.
8. Mst. Maryam in her cross-examination stated that when she was in company of accused Ghazi in the garden for a period of more than 4/5 days she did not make any attempt to escape from the garden where she was in company of accused Ghazi only. She stated further that the remaining accused used to go back to their houses which were lot near the said garden. She admitted having reached the Court premises in a wagon She allowed herself to be photos in the bazar of Liaqatpur where she did not raise any alarm. She admitted that her thumb-mark appeared on the stamp paper on which the affidavit was written.
9. All the above contentions of Mst. Maryam do not inspire confidence of truth in them and from the overall circumstances a cogent mind tends to believe that the victim lady Mst. Maryam had infatuation for accused Ghazi and for that purpose she had left her house to marry with him but on being seen by her son Ghulam Muhammad and P.W. Muhammad Siddique, her near relative in the Court premises, she went back to them and thereafter, her second husband Abdul Karim had to lodge the to save the family honor.
10. Therefore, the evidence on record does not prove the case of abduction against all the accused without reasonable doubt and therefore, I do not find that the judgment of the Trial Court should be sustained. Consequently, giving benefit of doubt to the appellants, the judgment and sentence passed against the accused/appellants is set aside and the appeal is allowed. The appellants should be released forthwith if not required in any other case.