1. ' MUHAMMAD ROSHAN ESSANI, J.---The appellant Muhammad Siddiq and co-accused Mst. Naseem Akhtar, Mst. Nasreen alias Zarina, Pir Abdul Nabi and Pir Abdul Manan were sent up to stand trial under sections 10(2)(3), 11, 16 and 19 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 109 and 114, P.P.C., in the Special Court for Speedy Trials.
2. ' The learned Judge, Special Court for Speedy Trials, Multan by his judgment, dated 27-4-1993 acquitted the accused Mst. Nasreen alias Zareena and Mst. Naseem Akhtar. The appellant Muhammad Siddik was however convicted under section 11 read with section 19(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to suffer imprisonment for life. It was further ordered that appellant shall suffer the sentence of whipping by thirty stripes and to pay fine of Rs,20,000. In default of payment of the fine, he was to suffer rigorous imprisonment for six months more.
3. ' The appellant Muhammad Siddiq filed appeal under section 13 of the Special Court for Speedy Trials Act, 1992 before the Supreme Appellate Court No,11, Lahore (Punjab).
4. ' After the abolition of Speedy Trial Courts, the above appeal was transferred to High Court of Sindh, Sukhur Bench as it related to Sukhur Division for disposal according to law.
5. ' Subsequently, on the application of transfer moved by the appellant, the above appeal was transferred to principal seat of this Court at Karachi.
6. The brief facts of the prosecution case, as disclosed in the F.I.R., lodged by S.H.O., Hussain Bux Panhwar on behalf of the State, on 28-8-1991, are that on 11-5-1991 at about 5-30 p.m. Accused Pir Abdul Nabi of Bharchandi and Mian Abdul Manan Pir of Bharchandi kidnapped Mst.Asma, sister of Muhammad Shafi Arain, from near Government High School on Daherki Road while she was returning after appearing in the examination paper of IXth Class. It is further mentioned in the said F.I.R., that it was learnt that this kidnapping took place with the connivance of appellant Muhammad Siddik while the abductee was returning from examination hall alongwith her girl friends Mst. Naseem, Mst. Zarina, who were sisters of appellant Muhammad Siddik. According to complainant, it was certain that the abductee girl Asma was with Mian Abdul Nabi and Abdul Manan of Bharchandi Sharif, the co-accused named hereinabove. The relations of the kidnapee however did not lodge report due to the fear of the accused party. They kept on trying privately to get the hand of the abductee girl but accused refused to return her hand.
7. ' After the investigation, the appellant Muhammad Siddik, Mst. Naseem Akhtar, Mst. Nasreen alias Zarina and co-accused Pir Abdul Nabi and Pir Abdul Manan were sent up to stand trial. In the charge-sheet accused Pir Abdul Manan was shown as an absconder.
8. ' The appellants Mst. Nasim Akhtar, Mst. Nasreen and co-accused Pir Abdul Nabi were released on bail. Co-accused Pir Abdul Nabi however jumped bail and absconded.
9. ' On 19-1-1993 the Special Court (for Speedy Trials), Sukhur Division, Sukhur framed the following charge: CHARGE ' I, Abdul Rahim Kazi, Judge Special Court for Speedy Trials, Sukhur ' Division, Sukhur, do hereby charge you:
(1) Muhammad Siddiq son of Ahmad Bux Soomro,
(2) Mst. Naseem Akhtar daughter of Ahmed Soomro,
(3) Mst. Nasreen alias Zareena daughter of Ahmed Bux Soomro as follows: ' That on 11-5-1991 at about 5-30 p.m. On the road in front of Government Provincialised School situated at Dharki, Taluka Ubauro, District Sukhur, you alongwith absconding co-accused Pir Abul Nabi and Pir Abdul Mannan abducted Mst. Asma daughter of Iqbal Arain with intention that she would be compelled to marry against her will or she may be forced or seduced to illicit intercourse and thereby committed an offence punishable under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
10. ' That on the above date, time and place you alongwith absconding accused mentioned above enticed Mst. Asma with intention that she may have illicit intercourse with persons and you concealed and detained her with that intention and thereby committed an offence punishable under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
11. ' That on the above date, time and "lace you accused Siddique, Mst. Nasreen and Mst. Naseem abetted absconding accused Pir Abdul Nabi and Pir Abdul Mannan and in consequence of that abetment accused Pir Abdul Nabi committed Zina-bil-Jabr with Mst. Astha and thereby committed an offence punishable under section 109/114, P.P.C. Read with section 10(2) and (3) and section 19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and within the cognizance of this Court.
12. ' And I hereby direct that you be tried by me on the aforesaid charges.
13. ' Dated this 19th day of January, 1993.
14. (Sd.) Judge.
15. ' The appellant and the two ladies named herein pleaded 'not guilty' to the charge and claimed to be tried.
16. ' In support of its case, the prosecution examined P.W.1 Fakir Muhammad Exh.8 who produced 164, Cr.P.C., statement of Mst. Asma as Exh.8/A, P.W.2 Mehboob Ali Exh.9. He produced Mashirnama of the arrest of accused Pir Abdul Nabi as Exh.9/A. P.W.3 Ali Gohar, he produced Mashirnama ofsVardat as Exh.10/A.
17. ' The impugned judgment showed that after the examination of three prosecution witnesses, by Notification No,F-2(41)/92- MC, dated 8-3-1993 the case was transferred to Special Court for Speedy Trials, Multan, Punjab.
18. ' The evidence of P.W.4 Muhammad Shafique Exh.Nil, P.W.5 Hussain Bux S.H.O./I.O. Exh.Nil, P.W.6 Dilshad Hussain Exh.Nil, P.W.7 Mst. Asma Iqbal Exh.Nil, P.W.8 Sh. Muhammad Iqbal Exh.Nil, was recorded at Multan and prosecution closed their side vide statement Exh.Nil, dated Nil.
19. ' The co-accused Mst. Naseem and Mst. Nasreen, in their statement under section 342, Cr.P.C., denied the prosecution case and further stated that prosecution wanted that they should depose against co-accused Pir Abdul Nabi and Pir Abdul Mannan and on their refusal they were falsely implicated in the present case. The appellant Muhammad Siddik in his statement under section 342, Cr.P.C., also denied the allegations and further stated as under: "Mst. Nasreen, my sister is class-fellow of Mst. Asma. She told the parents of Mst. Asma that Mst.Asma had gone with Pir Abdul Nabi with her consent and prosecution wanted me to depose against Pir Abdul Nabi and on my refusal I have been implicated in this case."
20. ' We have heard Mr. Abdul Haleem Pirzada learned counsel for the appellant and Mr. Habib Ahmed learned Assistant Advocate-General on behalf of the State. The latter frankly stated that the sentence may be modified and period of sentence already served out by the appellant will meet the ends of justice.
21. ' The perusal of the R&P shows that the alleged incident occurred on 11-5-1991 but the F.I.R., was not lodged by the parents (aggrieved party) of the kidnappee with promptitude. After about 3-1/2 months the F.I.R. Was lodged by S.H.O., Hussain Bux Panhwar as complainant on behalf of the State.
22. The P.W.2 Mehboob Ali Exh.9 Head Constable Police Station Daherki stated in the cross-examination that Daherki is a Town Committee and population of the Town is about 2 to 3 thousand. P.W.5 Hussain Bux, S.H.O. Has stated in X-examination that population of Daherki Town is about 10/12 thousand persons. P.W.3 Ali Gohar Mashir of Vardat has admitted that place of incident was inspected on 28-8-1991, and about 100 shops were situated near the Vardat. P.W.4 Muhammad Shafique brother of the abductee stated in his evidence that his brother P.W. Hafiz Iobal also lived with him and they own about 1...) shops at Daherki Town and police station is situated at the distance of about 1/2 furlong from the school. He further stated that on the third day of the incident both lady accused informed them about the alleged incident. P.W. 8 Muhamamd Iqbal father of the girl stated that they had a telephone in their house. He stated that after about one month of the incident their men met with President and Prime Minister but except his uncorroborated word nothing was brought on record from which it could be deduced that the first information report was lodged on the intervention of Prime Minister or President. There is nothing on the record that any complaint, Telegranmme or application was made to higher authorities, although P.W. Iqbal stated that lady accused informed him about this incident on the third day of the incident. P . W .5 S .H .0. /1.0. Hussain Bux stated in his evidence that on secret information he lodged the report. He did not mention in the F.I.R. Nor stated in his evidence that this report was lodged on the directives of the high-ups of the State. He categorically stated that no application was received by him.
23. ' It also does not appeal to the common sense that when such a heinous crime was committed and a girl was kidnapped who was a family member and aggrieved party were men of means why they kept mum for so long and they did not set the machinery of law into motion.
24. ' It is generally noticed that in cases of kidnapping particularly of a female the people in Mofussil were generally very sensitive and they did not sit idle. Thus, solitary word of interested witnesses to the effect that they were scared of the absconding co-accused named above is not sufficient.
25. S.H.O./I.O. Has admitted that he did not keep any note in the case diary that persons were scared of accused from giving statements. The I.O., in his evidence has not said a single word that at the time of the raid/recovery of kidnapee, or arrest of absconding accused Pir Abdul Nabi, any resistence was offered by the said accused, particularly when their house was raided. The I.O./S.H.O. Has further admitted that only 7/8 policemen were with him at the time of raid and arrest and no extra contingent of police or law enforcing agencies was deployed by him for the said purpose.
26. ' In the peculiar facts and circumstances of the case, the explanation for delay given by the P.Ws.
27. On account of fear of accused they did not lodge the First Information Report appeared to be a cock and bull story.
28. The F.I.R. Is a foundation of a case and entire case of the prosecution is based on its premises. In case of delay, the Courts always viewed F.I.R., with grave suspicion and it is well-settled that in the absence of any plausible explanation of a convincing nature, the delay was fatal and it was presumed to be a manipulation of prosecution story. The Courts even discarded the evidence of the P.Ws whose names transpired in such belated F.I.R., where the possibility of deliberation was suspected.
29. ' We need not cite the reported cases in which even delay of one hour, three hours, six hours, 12 hours, 24 hours or two days in recording the F.I.R. Was considered to be sufficient to hold the prosecution story as doubtful.
30. The names of the accused were known to the complainant party and keeping mum for 3-1/2 months by the complainant party reflected adversely upon the credentials of the prosecution case and under the peculiar facts and circumstances of the case inference could be easily drawn that incident did not occur as alleged by the prosecution.
31. ' In the case of Muhammad Nawaz and others v. The State reported in PLD 1983 FSC 508 where the F.I.R., was lodged by the father of the prosecutrix after one month of the date of occurrence. The explanation for delay given was that complainant was trying on his own to get back his daughter and having failed in such efforts the report was made. The explanation for this delay was not considered as convincing and it was further observed that such explanation was usual and was never taken seriously by the Courts as 'Punchaits' and personal efforts have not borne fruits. The F.I.R., was, thus, found to be lodged after deliberations and consultation and the authenticity of the F.I.R., was rendered as extremely doubtful.
32. ' All the prosecution witnesses are interested and even Mashirs are not resident of Town where the incident took place. P.W. Ali Gohar, 'Mashir' of Vardat, is resident of Ghotiki Town which is situated admittedly at the distance of about 20 miles from Daherki Town. P.W. Shafique Ahmed is brother of abductee. P.W.6 Dilshad, .'Mashir' of the recovery of kidnapee, is resident of 'Bhawalpur, in Punjab, and he is brother-in-law of P.W. Iqbal, father of abductee. P.W. Sh. Muhammad Iqbal is father of the abductee. P.W. Muhammad Shafique is brother of abductee. He has stated in cross-examination that on second or third day of incident they went to accused alongwith more than 50 persons.
33. Malik Shafiq, Saleem, Ramzan and Rafique were with them, but none of them have been examined by the prosecution to substantiate this allegation. These persons were important and neutral witnesses. In such a situation, the persons who were only connected, or were sympathisers, would accompany the aggrieved party. In the circumstances, therefore, adverse inference could easily be drawn against the prosecution on this count as well. The evidence adduced by the prosecution and Mashirnama of Vardat showed that alleged incident occurred in the heart of town but no report was lodged by the complainant party and not a single independent prosecution witness was examined to corroborate the version of the interested P.Ws.
34. The statements of the prosecution witnesses were not only recorded after undue delay, they were also highly interested. Thus, these statements are not confidence inspiring and have no credence in law.
35. Mere fact that witnesses had no apparent reason to falsely implicate accused, does not render their evidence unassailable. In this context I am fortified by the decision of this Court in the case of Nazir Muhammad Nazir Ahmed v. The State reported in PLD 1974 Karachi 274.
36. ' In the case of Rasool Bux and others v. The State reported in 1980 SCMR 225 it was observed by the Hon'ble Supreme Court that while appreciating, or relying upon, the evidence of interested witnesses Court has to see whether witnesses have come with clean hands without having any bias towards either parties.
37. ' In yet another case of Ijaz Ahmed v.The State reported in 1980 SCMR 892 it was observed at page 895 that disinterested witnesses may resort to falsehood when carried away by emotion or prejudice.
38. ' The other material aspect of the case is that the abductee P.W. Mst. Asma was not produced for medical examination and on the day of her recovery she was directly taken away by the complainant party to Lahore.
39. ' The P.W. Fakir Muhammad, Special Magistrate First Class, Municipal Corporation Sukkur, who recorded the 164, Cr.P.C., statement of abductee P.W. Mst. Asma, stated that the Court of S.D.M. And City Magistrate is adjacent to his Court. (Municipal Magistrate Court). Mst. Asma was first produced before S.D.M., Sukkur for the purpose of 164, Cr.P.C. Statement. He instead of recording her 164, Cr.P.C. Statement sent her to P.W. Fakir Muhammad, Municipal Magistrate. He has admitted that 164, Cr.P.C. Statement is not in his own handwriting though he can read or write Urdu language.
40. ' The section 164, Cr.P.C., postulates that the First Class Magistrate on whom the powers are conferred under this provision of law is competent to record such statement. Section (1-A) to section 164, Cr.P.C., lays down that any such statement may be recorded by such Magistrate in the presence of the accused, and the accused is to be given an opportunity of cross-examining the witness making the statement. In the present case, the statement under section 164, Cr.P.C. Was not recorded in the presence of the accused. The I.O./S.H.O., on the very day of the recovery of abductee P.W. Mst. Asma got her statement recorded at Sukkur. This was admittedly done at the instance of her father who was in a hurry to take her away to Lahore, though on the next day co- accused Pir Abdul Nabi was arrested, according to prosecution. Section 164(2), Cr.P.C., contemplates that such statements shall be recorded in such manner which is prescribed under the Code for recording evidence.
41. ' The Chapter XXV of the Code lays down the mode of taking and recording evidence. Section 356(2-A), Cr.P.C. Envisages that evidence of witness is to be taken down by the Presiding Officer of the Court in his own hand, or cause it to be taken down in his presence and hearing and under his personal direction and superintendence, and in case the evidence is not taken down as stated hereinabove the Presiding Officer has to make a memorandum of it. In case of his inability to record memorandum, he has to record reasons thereof. Again section 357, Cr.P.C., lays down that the Presiding Officer of the Court has to take down the evidence in his own hand and in his mother tongue and if he is prevented by any sufficient reason from taking down the evidence, he shall record the reason of his inability to do so. The bare perusal of 164, Cr.P.C., statement of P.W. Mst.
42. Asma shows that it was recorded in violation of the above provisions of the law. P. W.1 Fakir Muhammad Magistrate Exh.8 has admitted that the statement was not in his own handwriting, but his 'Peshkar' Itezar Ahmed had taken dictation who is a Sindhispeaking person. The Magistrate himself appeared to be a Sindhi-speaking gentleman. Thus, the statement under section 164, Cr.P.C., was not recorded in accordance with law. No memorandum has been appended with the statement nor any reasons were given by the learned Magistrate for departure from the provisions of the Code referred to hereinabove.
43. ' The evidence of P.W. Mst. Asma shows that the house of absconding accused Pir Abdul Nabi was in front of her house. After abduction she lived in jacobabad for about 1-1/2 month. Admittedly it is a District Headquarter and a big town. She has also stated that she was kept at Shandad Kot and Kandhkot which are sub-Divisional Head-Quarters and other Towns but surprisingly enough during this long period she did not complain to any body. She has admitted that she was passing menses prior to her abduction. Thus, she was pubert. There is suggestion in X-examination to P.W. Mst.
44. Asma that she contracted marriage with absconding accused Pir Abdul Nabi but she denied execution of any affidavit with regard to voluntarily entering into marriage with accused. She has stated that accused Pir Abdul Nabi filed a suit for restitution of conjugal rights but it was dismissed in default. She has not alleged any maltreatment at the hands of her alleged abductors. The Mashirnama of her recovery showed that no marks of violence were found on her person. It is further mentioned in the Mashirnama Exh.PE that apart from clothes she was wearing golden ornaments and a ladies wristwatch in her right arm.
45. ' In the case of Muhammad Nawaz and others (ibid) it was observed that prosecutrix who remained with accused allegedly for about a month and in different houses and allegedly was made to travel and kept on stopping place to place but on no occasion and at no place the prosecutrix uttered a single word about her abduction or for that matter, subjecting her to illicit intercourse, but once back to her home she took a somersault, refuted the marriage and levelled the charges of abduction and rape against the appellants. In such circumstances, the conduct of the prosecutrix was termed to be obviously the result of the police and the family pressure. Her silence for about a month with regard to her abduction went a long way to establish that she had eloped with the appellants and it was held that the case of abduction, thus, fell to the ground. - ' Again at page No,513 it was observed as under: "...The dishonesty on the part of the investigation agency is also discernible from the part that she was got medically examined on 14-10-1981 i,e,, about 7 days of her coming back home. In a case where rape is alleged why the police took 7 days to get her medically examined. This obviously again has been done with ulterior motive and bad faith and intentions."
46. In the case in hand P.W. Mst. Asma the abductee was not medically examined. Thus, the charge of forcible intercourse was not substantiated. The reason for non-examination as given by P.W.
47. I.O./S.H.O., Hussain Bux was that the father of Mst. Asma was keen to go out of Sukkur as soon as possible, so he was not willing to get his daughter medically examined on account of danger. This very explanation on the face of it suggested dishonesty on the part of the Investigating Agency because this is no plausible explanation. It appears that Investigating Agency has acted as a tool in the hands of complainant party and they acted according to the will and wish of the complainant party.
48. ' The evidence of prosecution witnesses was disbelieved by the trial Court in respect of lady accused Mst. Nasreen and Mst. Naseem and they were acquitted by the trial Court. It is well-settled that credibility of a witness is not divisible. If his evidence is not believed in respect of one, it will be dangerous to believe the same in respect of co-accused. The case of acquitted co-accused is at par to the case of appellant.
49. ' The allegation that on the alleged day of incident P.W. Mst. Asma went to appear in the examination of 9th Class and on her way back the present incident occurred is also not substantiated by the prosecution through independent witnesses and documentary evidence.
50. Neither any person from Education Department was examined nor any examination slip was produced from which it could be proved that she had actually gone to appear in the examination.
51. ' There are numerous contradictions in the evidence of prosecution witnesses which we need not reproduce here as even on broad facts the prosecution has failed to establish the charge against the appellant.
52. ' In the case of Muhammad Luqman v. The State reported in PLD 1970 SC 10 it was observed that: "....a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or nonexistence of a fact to prove the guilt of a person, the golden rule of 'benefit of doubt' to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts, will be reduced to a naught."
53. ' The above observations were also followed by his Lordship (as he then was) Late Justice Qaiser Ahmed Hamidi in the case of Muhammad Usman v. The State reported in 1992 PCr.LJ 588.
54. The upshot of the above discussion is that prosecution has miserably failed to bring home the charge against the accused, consequently he is given benefit of doubt and he is acquitted. He is in custody. He may be released forthwith if not required in any other case.
55. ' By our short order, dated 19-5-1999 we had allowed the above appeal and above are the detailed reasons for passing the said order.