' Ishaq Masih son of Inayat Maish, Iqbal Masih son of Boota Masih through Criminal Appeal No.1332 of 1999, Javaid Masih son Sardar Masih through Criminal Appeal No.1333* of 1999, Yousaf Masih son of Babu Masih through Criminal Appeal No.1334 of 1999 and Lager Masih son of Nazir Masih through Criminal Appeal No.479 of 2000 have all assailed the judgment, dated 4th December, 1999 passed by Special Judge, Anti-Terrorism Court No.3, Lahore whereby Javaid Masih, Iqbal Masih and Yousaf Masih and Lager Masih were convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) for abduction of the prosecutrix Mst. Samina and each one of them was sentenced to life imprisonment and stripes numbering 30 each, however, infliction of stripes was not awarded to Iqbal Masih because of his old age. The aforesaid appellants were also directed to pay a fine of Rs.1,00,000 each and in default of payment of fine to undergo six months'
S.I., each. Ishaq Masih appellant was convicted under section 10(3) of the Ordinance (ibid) and sentenced to 25 years' R.I. And stripes numbering 30 each which had to be executed outside the main gate of District Jail Sheikhupura publically.
2. Since all the appeals directed against the single Judgment I intend to dispose them of through this common judgment.
3. The occurrence which resulted in abduction of Samina took place on 12-3-1999 at 10 p.m. From the house of Ishaque Masih father of the procecutrix situated in Mohalllah Farooq Ganj, Sheikhupura when she was going towards the house of her aunt from her father's house. The matter was reported to the police on 24-3-1999 by Samina Bibi through a written application at 7- 30 p.m. Which was reduced into formal F.I.R. By Sadaqat Farooq A.S.-I.
4. The written application Exh.P.A. Forwarded by M.I.C., Sheikhupura to S.H.O., Police Station 'B'
Division, Sheikhupura authored by Samina Bibi stated that three months earlier she was married to Khizar Hayat working at Rawalpindi; that she had come to Mohalla Farooq Ganj, Sheikhupura to meet her father when on 12-3-1999 at 10 p.m. She was going to meet her aunt at her house also situated in Farooq Ganj, she was encountered by Javaid, Anwar Masih, Lager Masih, Yousaf Masih and Iqbal Masih out of whom Javaid Yousaf and Lager Masih forcibly dragged her into a car and took her to Lahore in Mohallah Youhanna Abad and confined her in a room of a house where she met Javaid, Yousaf, Anwar Masih, Lager and Iqbal Masih who committed Zina-bil-Jabr with her and on 18-3-1999 at evening time she found a chance to slip out and reached Sheikhupura at the house of her father and told him about the whole episode of abduction and rape, who informed the police at the police station as a result of which Yousaf Masih and Anwar Masih were arrested but neither a case was registered nor the other accused were taken in custody. It was prayed that a case be registered.
5. The police complied with the order of Magistrate Sheikhupura and got F.I.R. No.227 of 1999 registered.
6. After three days of registration of case i.e. On 27-3-1999 the police took the victim Samina Bibi to the Lady Dr. Zahida Noor, W.M.O, District Headquarter, Hospital, Sheikhupura who examined and found her to be between 18 to 20 years and observed that there was no marks of violence on face, breast and external genitalia or any other part of the body she found no viscera palpable as per abdominal examination. On vaginal examination, it was found that vagina admitted two fingers with great difficulty and painfully. No fresh hymen tears were present. Old healed hymen tear were present at 5 O'Clock and 7 O'Clock position. Two vaginal swabs were taken and sent to the office of Chemical Examiner, Punjab Lahore for semen detection. According to the Chemical Examiner Report Exh.P.C. Dated 14-4-1999 the swabs were found to be stained with semen.
7. Sadaqat Farooq, A.S.-I. (P..W.5) after recording of formal F.I.R. Proceeded to the spot and prepared site plan and recorded the statements of the witnesses under section 161, Cr.P.C. Yousaf Masih, Ishaq Masih and Lager were arrested on 13-4-1999 arid 30-5-1999. The other accused were on bail so they were arrested formally. During his investigation Anwar accused was found innocent whereas the other accused were found guilty and challaned.
8. The appellants when indicted they denied the prosecution case, pleaded not guilty and claimed a trial.
9. Prosecution examined as many as 7 witnesses. The ocular testimony account of abduction was provided by Idrees Masih P.W.3 and Sangara Masih P.W.4. Of .Course Samina the victim deposed withregard to abduction and rape.
10. The statement of the accused has been recorded under section 342, Cr.P.C. Lager Masih took up the defence that Ishaq father of Samina took money from him which he demanded back and on his failure to pay the same he was falsely involved in the case. The witnesses being related to the prosecutrix have falsely deposed.
11. Anwar Masih stated that Samina before registration of the case eloped with Lager Masih and the Punchayat which was convened at Police Station "B" Division, Sheikhupura he took the side of Lager Masih and for this reason he was falsely involved. He stated that he was not present at the time of abduction of victim in Sheikhupura and was falsely involved as he helped Samina Bibi to be lodged in Darul Aman through an Advocate, and for this reason father of Samina bore a grudge and falsely involved him.
12. Yousaf Masih stated that before the registration of the case, Samina Bibi eloped with Lager Masih and in the Punchayat which was convened for the return of Samina he took the side of Lager Masih which infuriated the father of the prosecutrix and he falsely involved him although he was not present at Sheikhupura.
13. Ishaq Masih son of Inayat Masih convicted for rape stated that before registration of the instant case he had registered a case against Sangara Masih and Isha4 Masih father of the prosecutrix for theft which took place in his house two months prior to the present occurrence and for this reason he was falsely involved. The witnesses being related to the prosecutrix have falsely deposed against him.
14. Learned counsel for the appellants contented that the prosecutrix eloped with Lager Masih prior to her marriage, later on she was married to Khizar Hayat against her wishes by her father on 11-1- 1999 resulting in breaking of marriage and her return to the house of her father where due to ill treatment she was forced to admit herself in Darul .Amaan from 3-2-1999 till 8-3-1999 and due to persistent supplications of her father she once again returned to Sheikhupura but soon thereafter she left her house and returned on 18-3-1999 by which time her father alongwith other relatives had made up their mind to cook up a false case and persuading the prosecutrix the F.I.R. Was lodged without any basis. It was contended that various stances adopted by the girl at various occasions proved to the hilt that the allegation of abduction and rape were a mere concoction and there was not an iota of truth in the same, therefore, the appeals be accepted and the appellants acquitted. Conversely learned counsel for the State supported the conviction and sentence recorded by the trial Judge.
15. I have heard the arguments of the respective counsel at length and have also gone through the record with their assistance.
16. Samina examined as P.W.2 reiterated the story of abduction as narrated by her in her complaint, however, she only levelled allegation against Ishaq Masih Zina-bil-Jabar with her and spared the other accused against whom allegation of rape were brought in the F.I.R. The Public Prosecutor, therefore, sought permission from the Court to declare her hostile and the request was granted and she was cross-examined by the District Attorney; where once again she reiterated that she was subjected to Zina-bil-Jabr by Ishaq Masih only. It is surprising that according to her statement she reached her father's house on 18-3-1999 and told him about the misfortune which visited her, however, the F.I.R. Was recorded on 24-3-1999. This confusion got further confounded when the police got her medically examined on 27-3-1999 three days after the F.I.R. Was registered. No explanation whatsoever has been furnished from any quarter as to why this delay in getting her medically examined took place. The only explanation which came to a prudent and reasonable mind is that deliberations were made in such a manner so as to bring a distorted version implicating the appellants for one reason or the other and the time was also utilized in creating evidence through the mouth of close and related witnesses. Samina admitted that her marriage was contracted by her parents at Rawalpindi where she lived for two months with her husband where the marriage was consummated but after this period she left her husband and brought a suit for dissolution of marriage although reason given is that Javaid accused coerced her to do so.
She admitted that Ishaq who is said to have committed rape with her was not seen by her prior to occurrence and for the first time she met Ishaq at Youhanna Abed in the quarter where he ravished her for 2/4 days. She told her father about the excesses committed by Ishaq and was taken to the police station next morning on her arrival in the house of her father and accordingly made a statement before' the Investigating Officer and admitted that the police brushed aside her story as false. It was later on when an application was written and produced before the Magistrate which was recorded at her father's dictation that name of Ishaq Masih as perpetrator of the crime was mentioned. Her admission that Ishaq Masih accused levelled a charge of theft against her father who got him summoned in the police station about the recovery of articles 2/3 months prior to present occurrence knocks out the case of rape against Ishaq. In the first instance the girl ventured to name of her abductors as also perpetrators of offence of rape to the exclusion of Ishaq but later on, the accusation of rave is only confined to Ishaque who is not known to her earlier and meets her for the first time in the quarter at Youhanna Abad and thereafter name of Ishaque Masih is included at the instance of her father who was indicted by Ishaque Masih for committing a theft in his house 2/3 months prior to the occurrence and was summoned to the police station. The various stances adopted by the lady clearly shows that allegation of rape against Ishaq is nothing but an absolute concoction.
17. Now coming to the offence of abduction, certain dates and events have to be dilated upon. She was married with a person on the insistence of her father with whom she lived at Rawalpindi but few days before 12-3-1999 she forsook her husband and came to Sheikhupura to join her parents to file a suit for dissolution of marriage. Nasim Bukhari, Assistant Superintendent Darul Amaan, Rajgarh, Lahore who brought the original record of the institution stated that Samina daughter of Ishaque was admitted in Darul Amaan on the application of Samina giving her address as resident of Sangla Hill, on 3-2-1999 and stayed up to 8-3-1999 and her record shows that Ishaque father of Samina had meetings with her daughter. It seems that Ishaque father of Samina persuaded her to leave Darul Amaan and to come to her house at Sheikhupura because the girl herself admits that few days prior to 12-3-999 she came back to Sheikhupura. The prosecutrix, therefore, lived in Darul Amaan for more than a month from 3-2-1999 to 8-3-1999. Sankara Masih is the paternal uncle of Samina. He alongwith Idrees Masih appeared as P.W.3 and P.W.4 who endorsed the story of abduction of Samina and both of them stated that they were coming after 10 p.m. When they saw Samina in a white car accompanied by the appellants who has been named by Samina to have abducted her. It is strange being close relations of Samina neither Sankara nor Idrees made any attempt to inform the father of the girl that they had seen her going in a white car at night alongwith abductors. I am sure if this information had been disclosed to Ishaq father of Samina either he would have informed the police or action would have been taken on his own to find the whereabouts of his daughter. This reasonable conclusion which is drawn is that either Samina left the house which was in the knowledge of her father or she went with his permission to Dural Amaan on some pretext acceptable to him, but later on when Punchayat was convened on the insistence of her husband Khizar Hayat for return of his wife in which some of the accused sided with Lager Masih with whom Samina had eloped prior to her marriage and it is then that they incurred wrath of Ishaque father of girl and she was made to adopt a stance according to his liking. I am not prepared to believe that Samina was taken in a car in the busy streets of Sheikhupura without any one came to know about it and when she was brought to Youhanna Abad in Lahore after alighting from the car nobody saw her or she did not raise an alarm that she is being brought against her wishes and people failed to rescue her from clutches of the abductors.
Surprisingly the Investigating Officer made no attempt to shift investigation to Youhana Abad where she was confined in a quarter and subjected to Zinabil-Jabr. The witnesses of the abduction could not correctly identify one of the accused in the Court what to speak of their observation at night time allegedly viewing Samina going in a car with her abductors. The story of abduction, therefore, is nothing but a cock and bull story to which no credence can be given. Samina Bibi of her own left the house when she was brought from Darul Amaan and re-appeared according to her own convenience. No one abducted her and the charges were brought falsely at the instance of her father. A woman who can prevaricate so shamefacedly involving in the F.I.R.Four persons for committing rape with her and then according to her convenience at the coaxing of her father reduce the number of person to one, loses all credibility and no authenticity can be lent to her statement. Such a woman becomes a danger to the society and it is an eye-opener for every young man to keep his distance from her, like lest he may also become a victim of her vagaries.
Lager Masih, Ishaque Masih and Yousaf Masih were in custody at the time of pronouncement of the judgment by the trial Court, meaning thereby that they were not allowed bail in pre-conviction period and according to the statement of Sadaqat Farooq A.S.-I. They were arrested as far back as 13-4-1999 which means that they have spent more than two years in continuous incarceration for no fault of theirs in a false case having no legs to stand upon.
17. The upshot of the discussion is that the prosecution has miserably failed to prove its case against the accused/appellants. All the appeals filed by the appellants are accepted. Judgment of the trial Judge, dated 4-12-1999, convicting and passing sentence of imprisonment, fine and whipping is set aside. They shall be forthwith set at liberty if not required in any other case.