' This appeal arises out of the judgment passed by IVth Additional Sessions Judge, Hyderabad, Sindh on 30-11-1998 in Sessions Case No,121 of 1996. The accused in this case Lal Bakhsh son of Muharram Shaikh was found guilty of an offence punishable under section 363, P.P.C., in addition to an offence punishable under section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as the Ordinance). He was sentenced to suffer R.I. For seven years and to pay a fine of Rs,5,000 or in default to suffer R.I. For six months on the first count. On the second count for the offence under section 10(2) of the said Ordinance he was sentenced to suffer R.I. For ten years and thirty stripes in addition to payment of fine of Rs,5,000 in default whereof to suffer further R.I. For six months. The above judgment and sentences stand challenged by this appeal.
2. The facts of the case in nutshell are to the effect that Muhammad Juman was posted as A.S.-I. Of Police at Police Station, Saeedabad which is at a little distance from Hala in District Hyderabad.
Residence of Muhammad Juman was located in the quarters provided to policemen at Police Station, Hala.
3. On 25-4-1996 Muhammad Juman had gone to Saeedabad on his duty and had returned to his residence in the evening. He reached home at about 7-00 p.m. His wife informed him that his daughter Mst. Parveen who had left for her school in the morning had failed to return home.
Muhammad Juman immediately left his house for searching his daughter but could not, get any clue. On 10-5-1996 two persons namely Nadeem son of Imam Bakhsh Memon and Baboo son of Hakeem Memon informed him that they had seen Mst. Parveen being taken away towards Hyderabad by accused Lal Bakhsh, a police constable of Police Station, Hala through bus. On hearing this news, Muhammad Juman went to Police Station, Hala, where his report was registered as Crime No,34 of 1996 for offence under section 11/16 of the said Ordinance, and his report disclosed the story as stated above.
4. After registration of the case, according to prosecution, the police recovered the girl from the house of one Manthar, a relative of accused Lal Bakhsh from a place known as "Bhel Mori" near Hala. The police during investigation recorded statements of P. Ws. Nadeem and Baboo and victim Mst. Parveen. Mst. Parveen was also produced before a Magistrate where her statement under section 164, Cr.P.C. Was recorded. Accused Lal Bakhsh had claimed before police that Mst. Parveen being a puberty girl had of her own wish came to him and offered to live with him after marriage.
He also produced before the police a duly attested affidavit of Mst. Parveen to the said effect and a Nikahnama bearing the seal of Nikah Registrar. The Nikah purported to have been performed in city of Hyderabad.
5. The investigating Officer produced Mst. Parveen for recording of her statement under section 164, Cr.P.C. In the Court of Civil Judge/FCM, Hala. Her statement was recorded in the said Court on 2-6- 1996 by the learned Civil Judge. In the first part of the statement of Mst. Parveen, she stated that on 25-4-1996 she was forcibly abducted at gun point by accused Lal Bakhsh and taken away in a car.
But immediately in the second part of her statement she came out with the truth that in fact she was accusing Lal Bakhsh in order to save the family honour. In her further statement before the Magistrate she stated that she had actually reached the age of puberty. She claimed that she was 17 years' old and that she was a major girl wanting married life. She claimed that she contracted marriage with accused Lal Bakhsh of her own free will and thereafter, she was living with him. At the end of her statement before Civil Judge & FCM, Hala, she requested the learned Magistrate to send her to Darul Aman for her safe custody as she was afraid of her parents. The learned Civil Judge/FCM passed an order on that statement under section 164, Cr.P.C., which is reproduced in extenso as under:--- "In the light of above statement given by Mst. Parveen alias Pappi daughter of Muhammad Juman by caste Kumhar, I reached the conclusion that accused Lal Bakhsh son of Muharram had been falsely implicated by the complainant, therefore, the accused is hereby remanded to judicial custody for the offence under section 11/16 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. The lady stated that she had willfully, by consent married with Lal Bux son of Muharram Shaikh and for her safe custody from the parents she wants to temporarily live in the Darul Aman for four days, thereafter she wants to live with her husband happily. The Superintendent of Darul Aman, Qasimabad, Hyderabad is hereby directed to take the custody of lady Mst. Parveen alias Pappi by caste Kumhar. The lady be sent to Taluka Hospital for medical examination and the accused is remanded to custody for 7 days. Put off to 9-6-1996.
' Dated this 2nd day of June, 1996.
' (Sd.)
' Asif Fatah Shaikh, ' Civil Judge and FCM, Hala."
' On getting certificate of age of the girl, that she was 13 years' old (therefore, a minor), the police challenged the accused. Mst. Parveen was in Darul Aman, her father Muhammad Juman secured her custody by filing habeas corpus petition in the High Court of Sindh, Hyderabad. Obviously her statement was recorded by the High Court (but the same has not been produced in the trial Court) and it is obvious that the girl might have opted to go to her father and, therefore, she went with the father. Presumption could be drawn that the High Court had allowed the girl to go with her father, and freed her from Darul Aman as she was not adjudged to be a minor, hence allowed to use her will to live anywhere she liked.
6. During the trial in the Court of IVth Additional Sessions Judge, Hyderabad, the prosecution examined P.W. Muhammad Juman who stuck to his guns by stating that his daughter who was 13 years of age had been kidnapped by accused Lal Baldish and his companions and that he was informed by Baboo and Nadeem on 9-5-1996 that they had seen accused Lal Bakhsh taking away Mst. Parveen in a bus towards Hyderabad. He admitted in his cross-examination that accused Lal Bakhsh was his neighbor and was living in the adjacent quarter at Police Station Hala. He denied the suggestion that his daughter had married of her own accord with Lal Bakhsh and she did so because Muhammad Juman was not ready to accept that the girl be married to accuse Lal Bakhsh.
7. The other P.W. Examined in the trial Court was Dr. Anwar Hussain who had certified that Mst.
Parveen was produced before him on 3-6-1996 for examination to determine her age. Dr. Anwar Hussain, a police surgeon certified that according to physical, general and radiological examination and appearance, Mst. Parveen was about 13 years' old on 3-6-1996. He had issued such certificate which was produced as Exh.9. The contents of medical certificate of age (Exh.9) were most relevant for the present case, but it appears that the learned trial Judge had overlooked the contents of the same. While reading the contents of this certificate about secondary sex characteristics of Mst. Parveen, it is mentioned in the certificate that the breasts of Mst. Parveen were fully developed, auxiliary hair were present and were of black color. There is also mentioned that her pubic hair were black and coarse, and that menstruation cycle of the girl was present since one year. He also gave the date of last menstruation period to be 28-5-1996. The statement and the certificate issued by this witness Dr. Anwar Hussain was not challenged by any party as he was not cross-examined at all, although due opportunity was given.
8. Ordinarily in this part of the World, girls of about 13 years reach their puberty but particularly by this certificate when produced before the trial Court and in absence of any challenge to it or any evidence to the contrary, on the question of puberty of Mst. Parveen, it was logical that Mst. Parveen was puberty and the trial judge should have considered the girl to be a puberty, hence of marriageable age. Here it has become necessary to examine what is puberty as considered by our religion. In the Urdu Book, titled as " {{URDU TEXT}} " written by our renowned jurists Mahmood Ahmad Ghazi and Abdur Raheem Ashraf Baloch under the title {{URDU TEXT}} published by in Chapter IV of the Book, observed that (puberty in English) could be determined in case of boys from their reaching the stage when " or (discharge of semen) occurs to them, and in case of girls " {{URDU TEXT}} " (menstruation) occurs to them. At page 99, paragraph No,57 of the above book, it is observed that in case neither of the conditions or was present in a boy or girl, the belief about {{URDU TEXT}} will be ascertained from the age. But again particular age of puberty has not been fixed as the agreed dictum by the Muslim scholars. Therefore, it is opined in this book that when the discharge of semen in case of boys and menstruation in girls is established, they be considered as puberty. Even the definition of the word 'adult' in section 2(a) of the Ordinance reads as under:--- "Section 2(a): adult means a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty." (Force applied by me).
This clearly suggests that either of the conditions is proof of being adult viz. Either reaching the age of 16 years by a female, or having reached puberty. Puberty is achieved as discussed above, in case of girls, if they have menstruated. In the present case the certificate of age produced by the witness Dr. Anwar Hussain (Exh.9) shows that Mst. Parveen was having menstrual periods. As such the contents of the above certificate with regard to his opinion that the age of the girl was 13 years, do not prove that Mst. Parveen was a "minor" and not an adult on the date of occurrence. Hence the conviction of Lal Bakhsh, only on that account cannot be sustained. At least benefit of the reasonable doubt about adulthood of Mst. Parveen, will put the commission of offence of Zina in doubt.
9. The third witness from the prosecution, side was Mst. Parveen, the victim herself. She, like her father, supported the prosecution. Case in her deposition and stated that on the day of incident she had started for going to her school at Haia when four persons riding in a car including the accused Lal Bakhsh armed with pistol made her to sit in the car, threatened her that if she raised cries she would be killed. Thus, she kept quiet and thereafter, the accused Lal Bakhsh and his brother-in-law Manthar took her to Manthar's house in Tando Allah Yar in District Hyderabad. She stated that she was confined there and accused Lal Bakhsh used to commit Zina with her.
Subsequently she was taken to Kotri and from there to "Khuda Ki Basti". She was ultimately taken back to Hata after about 20 days and on seeing the police she raised alarm, as a result of which police arrested Lal Bakhsh and also took Mst. Parveen to the police station. She admitted that her statement was recorded before the Civil Judge/FCM, Hata (under section 164, Cr.P.C.). She produced the same as Exh.13. She in the Court denied having put her signature on her statement under section 164, Cr.P.C. She admitted that she was taken to the hospital and was medically examined. She admitted that she was sent to Darul Aman where she remained for about one month. She admitted that she was thereafter produced before High Court wherefrom she went in company of her father. In cross-examination, she denied the contention of accused Lal Bakhsh about marriage with him and her signature on the Nikahnama and on the affidavit sworn before the Magistrate. She owned the photograph on the affidavit to be hers but stated that the said photograph was snatched by the accused by force. She admitted that when she was at Korti, the mother of accused Lal Bakhsh was living with them. She denied her consent in going with Lal Bakhsh, and marrying with him. All this was unbelievable especially in view of her 164 statement, and her deposition at the trial Court could not be made the basis of conviction of the appellant, as it was directly opposite to what she stated in the earlier statement which was also corroborated by her affidavit and Nikahnama.
10. Next witness from the prosecution side was Muhammad Aslam, A.S.-I. Of Police Station, Tando Allah Yar whose evidence was of formal nature and of no consequence.
11. P.W. Baboo son of Abdul Hakeem Memon did not support the prosecution case and was declared hostile. He was the person to whom Muhammad Juman assigned the role of having informed him on 9-5-1996 of the presence of accused Lal Bakhsh with Mst. Parveen going in a bus but he did not support contention of Muhammad Juman on that point and, therefore, explanation of Muhammad Juman in support of his long delay in filing of the report with police has fallen flat.
12. The learned Civil Judge/FCM, Hala Mr. Asif Fatah Shaikh was examined as P.W.6 (Exh.27) in the trial Court he deposed that he had satisfied himself that Mst. Parveen had given a true account and statement when she was examined by him under section 164, Cr.P.C, He contended that Mst.
Parveen had married with Lal Bakhsh of her free will and consent. There appear no reasons to discard evidence of this witness who is a Civil Judge & FCM.
13. The statement of accused Lal Bakhsh under section 342, Cr.P.C., was to the effect that he was serving as police constable at Hala while Muhammad Juman was an A.S.I., at the same police station. He claimed that Mst. Parveen had come herself to his house at Tando Allah Yar where he was present with her mother. Mst. Parveen had informed him that since she was being forced to marry one person by name Umeed Ali Lakho by her father she had chosen to voluntarily come to the 'house of accused Lal Bakhsh at Tando Allah Yar to marry with him. However, at first occasion, Lal Bakhsh wanted Mst. Parveen to go back to her father's house but she refused to go back. She finally accompanied accused Lal Bakhsh to the Court of Additional City Magistrate, Phulali at Hyderabad where she swore an affidavit containing her photograph and thereafter, her Nikah was performed and she started living as the wife of the accused Lal Bakhsh in "Khuda Ki Basti". Lal Bakhsh claimed that they lived there for about two months and during that time complainant A.S.-I.
Muhammad Juman used to visit them and he persuaded Lal Bakhsh and Mst. Parveen to come back to Hala so that Juman may arrange for a befitting Rukhsti ceremony. On refusal of Mst.
Parveen and Lal Bakhsh he was annoyed and, therefore, he brought the police at Khuda Ki Basti and got Lal Bakhsh arrested and took away Mst. Parveen with him by police force.
14. The learned trial Judge in his judgment took pains to discuss all the above evidence and came to conclusion that Mst. Parveen had gone to the house of Lal Bakhsh of her own free will and married with him, Such conclusion was quite justified, but strangely the learned trial judge held that Mst. Parveen was a minor (mentioned as not adult) and, therefore, he was of the view that she was kidnapped and raped and hence he convicted appellant Lal Bakhsh on two counts i,e,, commission of Zina and kidnapping.
15. After hearing the arguments of the learned counsel for the appellants and the learned State Counsel, I minutely examined the record of the case as disclosed in the foregoing paragraphs. I noted from the medical certificate issued by Dr. Anwar Hussain (Exh.9) that the learned trial Judge had simply ignored the contents of this certificate which was proved of having been issued by the doctor under his signature and that it was not even questioned. Thus, the contents' of the certificate became relevant evidence which showed that Mst. Parveen was pubert at the relevant time. But the trial Judge erred in not considering the point of puberty proved by the certificate, while he was led away by the words in deposition that Parveen's age was about 13 years. Perhaps the trial Judge had in mind the words of section 2(a) of the Ordinance which has defined "adult".
But had the trial Judge read the full provisions of section 2(a) he could not miss "or has attained puberty" after the words sixteen years. Therefore, the judgment is result of misreading of the law, and evidence and, therefore, erroneous and wrong and cannot be sustained.
16. Coming to the evidence of Mst.Parveen in trial Court, no doubt she had supported the prosecution case by stating that she was kidnapped and subjected to Zina, it cannot be overlooked that this case pertains to the Province of Sindh which is not only backward, but people in general lack literacy. The usual customs and social values prevailing there cannot be overlooked. A young unmarried girl although puberty cannot be easily accepted in family if she chooses a life partner of her choice and it is not uncommon that such girls meet the wrath of "honor killing" as our illiterate and backward society in general, has not accepted the Islamic values of life according to dictates of our religion. It is clearly provided that a puberty girl has the right to choose a life partner of her choice. From the overall circumstances, the facts and the evidence recorded by the trial Court in this case, one cannot come to a different conclusion than the one that Mst. Parveen developed liking for a young neighbor who was a police constable and of her own desire she married with him, lived with him as his wife but it was not accepted by her father. As is prevalent in our society when she was brought to police station and saw her father she changed her story to please her father and save the family honor and her life which in similar circumstances is done by many girls for they are afraid of social stigma and even death under the custom of "Karo-Kari". Anyhow, what I have stated in the foregoing paragraphs may not be a fool proof conclusion but it clearly creates a reasonable doubt whether the prosecution story was true? Under these circumstances I cannot come to a different conclusion than to hold that the accused deserves benefit of doubt and hence is entitled to acquittal with the result that the judgment of the trial Court cannot be sustained and the same is set aside. The accused stands acquitted of the charge for the above reasons and therefore, should be released from jail if not wanted in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.