' This criminal appeal was filed by four appellants Muhammad Bakhsh, Gul Muhammad, Hassan and Sadiq who were tried by the Court of Additional Sessions Judge, Shandadpur, District Sanghar.
They were found guilty of the offence punishable under sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. They were tried as first offenders, therefore, convicted and sentenced to undergo R.I. For five years and fine of Rs,5,000 each or for non-payment of fine to further undergo R.I. For six months each. This was the sentence on the first count while on second count they were also sentenced to undergo R.I. For three years and ordered to pay fine of Rs,3,000 each or they should further undergo R.I. For three months for the offence under section 16 of the said Ordinance. The sentences of imprisonment were, however, ordered to run concurrently.
2. The appellants challenged the above judgment and sentence by this appeal. This appeal was heard and allowed by a short order on 14-3-2000 for the detailed reasons to be recorded later on.
Following are the detailed reasons for the abovesaid short order.
3. On 16-11-1997, complainant Allah Bachayo had lodged report at Police Station, Shandadpur (F.I.R.
No,113 of 1997) and had stated therein that he was married to Mst. Rukhsana daughter of Lal Bakhsh about 8-10 years earlier and that a seven years old son Shahzad Hussain was the outcome of the marriage. He stated that 8-9 months prior to the registration of the F.I.R., when he alongwith his son Shahzad Hussain and brother Allah Wasayo were sitting in their house, the present appellants Muhammad Bakhsh, Gul Muhammad, Hassan and Sadiq came there. They were armed with lethal weapons. Mst. Rukhsana was dragged away by force in a car which was waiting outside. The complainant thereafter went to his Nekmard Ali Ahmad Nizamani and complained to him about the incident. Ali Ahmad Nizamani kept the complainant on hopes that he will get his wife restored to him but ultimately after the alleged period of 8-9 months the complainant lodged the report with the police. After due investigation, the police challaned the appellants on 11-12-1997. The trial Court after framing the charge under sections 11 and 16 of the said Ordinance, convicted and sentenced them as described above.
4. Prosecution had examined P.Ws. Allah Bachayo, Allah Wasayo, Ashiq Ali and Gul Muhammad. The evidence of P.Ws. Allah Bachayo and Allah Wasayo was to the effect that the appellants had forcibly taken away Mst. Rukhsana in a car when they were sitting in their house and had also raised cries. P.Ws. Allah Bachayo and Allah Wasayo are real brothers. They admitted in the Court that in all 40-50 houses existed near the place of Wardat in their village. They admitted also that the appellants were on visiting terms with the complainant and used to come inside their house.
Complainant Allah Bachayo in his evidence stated in cross-examination that it was only P.W. Allah Wasayo and nobody else who had seen the incident. They did not follow the accused persons after the incident. Allah Bachayo also stated that the road was far away from his house, which was surrounded by a compound, meaning thereby that the car in which the lady was taken away must have been parked at sufficiently a long distance and the lady was going on foot but neither any other inmate of the house nor any of the villagers were attracted nor they followed the culprits.
5. Complainant Allah Bachayo also admitted in his cross-examination that he had narrated the incident to Rais Ahmad Ali Nizamani at his residence where 3-4 other persons were also present.
6. Answering a question about the delay in lodging of the report he asserted that he had been making applications/complaints to higher authorities narrating the incident during the period of 8- 9 months for which he had not approached the police but he could not produce copy of any such application or complaint. Although Rais Ali Ahmad Nizamani was examined by the police under section 161, Cr.P.C. He was neither cited as a witness nor the complainant made any move to produce him in Court as a witness in support of his contention to corroborate his statement.
7. An admission given by Allah Bachayo in his cross-examination is by no means of small significance when he stated that his wife Mst. Rukhsana had run away with on Pathan Khan Mochi prior to the incident and that she was got returned by the efforts of Shabbir Hussain Shah.
Complainant denied the suggestion that he had divorced his wife in presence of Bakhsh Ali son of Chhuto, Bakhsh- Ali son of Sher Muhammad, Hashim son of Muhammad Rahim and Soomer son of Allah Ditto. He also denied another suggestion from the defence side that his wife after such divorce was residing in the house of her parents as he was maltreating her wife. He denied the enmity with the appellants which was suggested to him in cross-examination.
8. The other P.W. Allah Wasayo in his statement before the trial Court stated that his brother complainant Allah Bachayo had actually informed the facts of the incident to Rais Ahmad Ali who had called the accused also but ultimately when there was no patch up between the parties, Rais Ahmed Ali asked the complainant to go and approach the police. This P.W. Admitted in cross- examination that houses of the villagers Muharram Sariwal, Tagio, Shoukat, Nazar Ali, Kashmir Sariwal and Chanesar were located around the house of the complainant but none of these neighbours were attracted at the time of incident. He stated by way of explanation that all of them were present in their fields. He admitted presence of 2-3 persons at the house of Rais Ahmad Ali at the time of complainant's narrating the story of the incident to the Rais. He showed his ignorance whether Mst. Rukhsana had run away with one Pathan Khan Mochi prior to this incident. Similarly he showed his ignorance about the return of his brother's wife through the efforts of Syed Shabbir Shah. He, however, admitted that enmity existed between the accused and the complainant party as earlier to this incident there was a fight between the parties in which maternal-uncle by name Hashim Leghari had lost his eyesight at the hands of complainant who was alleged to have thrown a stone which had hit Hashim at his eye which was lost. The evidence of the remaining witnesses did not relate to the incident and was of consequential.
9. In their statements under section 342, Cr.P.C. All the appellants denied the allegations of the prosecution and claimed in their answer to the question put to them by the Court that main witness of the incident could be Mst. Rukhsana but she was not produced by the prosecution in Court. They claimed old enmity and also produced certified true copy of the F.I.R. Lodged against the complainant by Hashim, maternal-uncle of the appellants in respect of the incident in which Hashim had lost his eyesight. That F.I.R. Was lodged by Muhammad Bakhsh, the father of appellant Gul Muhammad and that due to the said case, enmity from the side of the complainant continued.
10. After hearing the learned counsel for the appellants, the most significant aspect of the case which came to light was that in respect of the allegation' of having taken away by force the victim wife of the complainant, there is evidence of only two brothers although there could be evidence of villagers or other circumstantial evidence which was neither collected by the police during investigation nor was produced in Court in support of the prosecution case. Rais Ahmad Ali would have been an important witness to corroborate the story told to him by the complainant at the time of incident. He was not examined as a witness. The lady Mst. Rukhsana was neither recovered by the police from any place nor was produced in Court. She would have been the deciding factor to prove the case against the appellants. However, no effort from the side of the prosecution was made to produce her in Court. For arguments' sake, if the complainant believed that she was still in custody of the appellants, he could have got issued a search warrant for her production but neither such prayer was made nor it was brought to the notice of the Court if the complainant and the P.Ws. Had made an effort to locate the whereabouts of the victim lady. Non-production of the available witness Ali Ahmad Nizamani, the stance showing that the victim had earlier run away from the house of the complainant with another person, creates a reasonable doubt that the story of the prosecution might not be wholly true.
11. The learned counsel for the appellants has also relied on the case of Jani and another v. The State decided by Federal Shariat Court and reported in 1996 PCr.LJ 656 in which it was held that delay of eight days in lodging of the F.I.R. In addition to the non-examination of the abductee and non-attraction of the people of Mohallah to the scene of the incident resulted in the acquittal of the appellants in that case. The facts of the present case are similar to the facts of the above case to some extent and the benefit of doubt creeps in, while appreciating the evidence of the witnesses.
Another legal infirmity pointed out by the learned counsel for the appellants in the judgment of the trial Court was that the appellants were convicted simultaneously for offence under sections 11 and 16 of the said Ordinance. It was not tenable in law. He relied on the Full Bench judgment of Federal Shariat Court in the case of Muhammad Ishaque and another v. The State and another reported in 1985 PCr.LJ 142. In the reported case of the Full Bench, it was held that the ingredients of sections 11 and 16 of the Ordinance did not overlap and, therefore, the conviction can be either under section 11 or section 16. For the other accommodating reasons in the said Full Bench case, appeal was accepted. The judgment was authored by erstwhile Chairman of Federal Shariat Court, Justice Aftab Hussain. The background of the enmity in the present case between the complainant party and the accused could also not be overlooked.
12. The learned counsel for the State very frankly stated that he was not supporting the judgment of the trial Court and contended that the appellants deserved to be given benefit of doubt.
13. For all the above reasons, I am of the view that the judgment of the trial Court could not be sustained and, therefore, the same was set aside and the appellants were ordered to be released forthwith if not wanted in any other case, by the short order on 14-3-2000.