' KHAN RIAZ-UD-DIN AHMED, J.--- Muhammad Aslam, Muhammad Ashraf and Abdul Jabbar appellants have filed this appeal to challenge their conviction and sentence passed by the learned Sessions Judge, Haripur vide his judgment, dated 15-9-1998, whereby;
(a) Muhammad Aslam was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called this Ordinance) and was sentenced to fifteen years'
R.I. With thirty stripes and fine of Rs,10,000 in default of payment of fine he was to suffer further R.I.
For one year.
(b) Muhammad Ashraf was convicted under section 16 of this Ordinance and was sentenced to four years' R.I. With five stripes and fine of Rs,2,000 in default to undergo further R.I. For three months.
(c) Abdul Jabbar was convicted under section 16 of this Ordinance and was sentenced to undergo R.I. For five years with fifteen stripes and fine of Rs,5,000 in default to undergo further R.I. For six months.
' The fine if realized half of the same was directed to be paid to the abductee by way of compensation. All the three appellants were, however, extended the benefit of section 382-B, Cr.P.C.
2. Briefly the facts of the case averred in the F.I.R. Exh.P.A. Registered at Police Station Khanpur on the basis of the report Exh.P.A./1 lodged by Mst. Tazeem Akhtar P.W.4 with S.-I. Malik Aman P.W.8 at Kohala on 30-4-1995 at 10-30 a.m. Are, that she alongwith Mst. Rafia Bibi the sister of her husband, were present in their house in village Hilli, while Sofi Haleem, her father-in-law was away to attend Khatm-e-Qur'an and her mother-in-law had also gone to the village, when at about 9-00 a.m.
Sabir armed with Klashnikov, Gulfaraz with pistol, and Rafaqat empty-handed, trespassed into their hduse, and forcibly dragged away Mst. Rafia Bibi at pistol point, and after boarding her in a blue car went towards Jabbri Bangla. She further stated that this occurrence had taken place at the instance of Aslam accused, for forcibly subjecting Mst. Rafia Bibi to Zina or marry her against her wishes. She also stated that the occurrence was seen by all the villagers as it had occurred at day time.
' S.-I. Malik Aman after recording the above report Exh.P.A./1 at the instance of Mst. Tazeem Akhtar, despatched the same to the Police Station Khanpur for the formal registration of the case and himself resumed the investigation. He proceeded to the spot and inspected the scene of occurrence. He prepared rough site plan Exh.P.B. At the pointation of the complainant. He then started chasing the accused. He found a damaged car bearing No,LEH-188, deserted near the field of one Abdul Jabbar, which was taken into possession vide recovery memo. Exh.P.C. As it was stated to be same in which the accused had taken away the abductee. The S.-I. Then searched for the abdcutee, but she could not be recovered. He, however, arrested Abdul Jabbar accused on 18- 5-1995 from Police Line Islamabad and got him transferred to Haripur. He also arrested one Karam Dad on 4-5-1995. He produced P.W. Rafaqat for recording his statement under section 164, Cr.P.C.
On 14-5-1995 before the Magistrate and thereafter, the investigation was transferred from him to Muhammad Aslam, Incharge C.I.A. Haripur, who recovered Mst. Rafia Bibi abductee from the possession of the accused Muhammad Aslam on 16-6-1995 vide recovery memo. Exh.P.W.2/1. He recorded the statement of Mst. Rafia and produced her for medical examination on the said date.
She was also produced before the Ilaqa Magistrate for recording her statement under section 164, Cr.P.C. Which was duly recorded and handed over to the Investigating Officer. He also took into possession two sealed bottles containing vaginal swabs of the abductee vide recovery memo.
Exh.P.W.1/1 which were duly sent to the Chemical Examiner vide his application Exh.P.W.9/1. He also arrested Muhammad Aslam accused and produced him for medical examination. After completing various formalities of the investigation the accused, Muhammad Aslam, Abdul Jabar, Muhammad Ashraf and Niamat were challaned to Court to face their trial while Sabir, Gulfraz, Rafaqat. Abdul Rashid and Mst. Samina were declared as absconder as they had gone underground and the proceedings under section 512, Cr.P.C. Were initiated against them by the learned trial Court.
3. The prosecution has produced as many as 11 witnesses to prove the guilt of the accused at the trial.
' Mst. Rafia Bibi aged 18/20 years the abductee appeared as P.W.3 and stated that on 30-4-1994 at about 9-30 a.m. She alongwith her sister-in-law Mst. Tazeem Akhtar was present in her house in village Bandi when Muhammad Sabir armed with Klashnikove, Gulfraz armed with pistol entered their house. Muhammad Sabir caught hold of her hand and dragged her outside her house and forced her to sit in the car parked on the road. They took her to Gada and on the way she was given beating by the accused by fists and kicks. She further stated that they spent two nights in the jungle in the house of one Abdul Rashid and then she was taken to Chargani jungle where Abdul Jabbar accused joined them, who took them to Islamabad by a Datsun (Taxi). Abdul Jabbar accused sat with her on the front seat while the remaining three accused were in the rear portion of the vehicle. They took her to the house of accused Muhammad Sabir in Bari Imam where Aslam accused and Samina were already present. Muhammad Sabir accused instigated the other accused to perform forcible Nikah of the abductee with Muhammad Aslam accused, which she refused sternly. Thereafter, she was taken to an unknown place where Muhammad Sabir and Abdul Jabbar accused forced her to affix her thumb-impression on some papers. They remained there for about one month. It was during the said period that she was subjected to forcible Zina without her consent by Muhammad Aslam accused. From there she was shifted to the house of one Niamat accused where she was kept there for 4/5 days and was then taken to yet another place where Muhammad Aslam accused committed Zina-bil-Jabr with her for two days. Thereafter, at the asking of Muhammad Sabir accused, Muhammad Aslam accused alongwith the abductee left for the village of the accused, but when they reached near Rawara Gali they were encircled by the police and were taken to the police station. She was got medically examined from District Headquarters Hospital, Haripur. She further stated that she had not contracted any Nikah with Muhammad Aslam accused and charged Muhammad Sabir, Gulfraz, Rafaqat, Abdul Jabbar, Muhammad Aslam, Abdul Rashid, Ashraf and Mst. Samina for her abduction and facilitating Muhammad Aslam accused for the commission of Zina-bil-Jabr with her. While under cross- examination she admitted that she had not raised hue and cry because of fear and threat of the accused. She also refuted the suggestion that she alongwith Muhammad Aslam got pre-arrest bail from the Court of Sessions Judge, Abbottabad. She also denied to accept Muhammad Aslam accused as her husband as she had no knowledge whatsoever about the documents Exh.P.W.3/D-
1. She denied having executed any affidavit on a stamp paper in this regard. She finally termed it incorrect, that she had entered into Nikah with Muhammad Aslam accused with her own choice.
' Mst. Tazeem Akhtar the complainant appeared as P.W.4 and had reitereated the contents of the complaint Exh.P.A./1 lodged by her with the police which bear her signature. She also refuted the suggestion as incorrect that Mst. Rafia Bibi had married Muhammad Aslam of her own sweet-will.
' Dr. Irshad Bibi, Women Medical Officer, District Headquarters Hospital, Haripur appeared as P.W.S. She deposed that on 16-6-1995 at 6-10 p, m. She had medically examined Mst. Rafia Bibi aged about 20 years and had found, that physically she was well built. Her secondary sex characters were well-developed, her age by appearance was about 20/22 years. On P.A. Examination she found no pregnancy, but on P.V. Examination hymen was found not intact. She was admitting two fingers easily. Whitish discharge was present. Area surrounding the hymen was tender and painful to touch. One swa b from outside vagina and one from post fornix were taken for chemical analysis.
Her teeth were 16/16. She also found a wound scar on the back of her left hand. She testified her report Exh.P.W.5/1 to be correct which bear her signature. She also stated to have handed over two sealed phials containing swa bs to the police alongwith record. She while under cross-examination replied that whitish discharged shown by her in her report Exh.P.W.5/1 can be present due to vaginal diseases also.
' Dr. Khalid Radiologist District Headquarters Hospital, Haripur appeared as P.W.6 and stated that he had examined Mst. Rafia Bibi on 16-6-1995 for her age which according to X-Ray report Exh.P.W.6/1 was found to be more than 18 years.
' A.S.-I: Ghazanfar Ali P.W.7 deposed that on receipt of report Exh.P.A./1 he had registered the F.I.R.
Exh.P.A. At Police Station Khanpur.
' S.-I. Malik Aman appeared as P.W.8 and gave out the details of investigation conducted by him while Muhammad Aslam, S.H.O. Police Station Saddar, Haripur appeared as P.W.9 and deposed about the various formalities of the investigation conducted by him including the arrest of Muhammad Aslam and recovery of the abductee from his possession as well as submission of challan in Court against the accused.
' Dr. Waheedur Rehman, Medical Officer, District Headquarter Hospital, Haripur appeared as P.W.10 and deposed that he had examined Muhammad Aslam accused, aged about 33/34 years, and had found him capable of performing of sexual intercourse. He had testified his report Exh.P.W.10/2 to be correct which was in his handwriting and bear his signatures.
' Muhammad Irhsad P.W.11 deposed about the recovery of damaged motor Car No,188-LEH which was taken into possession vide memo. Exh.P.C. Which bear his signature.
5. As Niamat accused had absconded during the trial so the learned trial Court after recording statement of Abdul Jabbar D.F.C. No,169 as S.W.3 declared him absconder and proceedings under section 512, Cr.P.C. Were taken in his absence.
6. After close of the prosecution evidence the accused were called upon to make their statements under section 342, Cr.P.C. Muhammad Aslam accused denied the allegation put forth by the prosecution and pleaded innocence. He, however, in reply to the question by the Court "as to why he has been charged", he took a specific plea and deposed as under:-- ' "I am innocent and falsely been charged. In fact Mst. Rafia was previously engaged to me. She left her house of her own accord out of her own free-will and contracted a valid Nikah with me copy of Nikahnama is Exh.D.1. About hearing the registration of the case Mst. Rafia appeared before the learned Sessions Judge, Abbottabad alongwith me and got transit bail for Haripur. For joining the investigation when we appeared before the police were kept by the police in the police station till the expiry of the date fixed for our appearance before Sessions Court, Haripur. The police then showed formal arrest from Rawra Gali. The Investigating Officer with the connivance with the complainant party had forced Mst. Rafia Bibi to charge me and my other family members. Mst.
Rafia Bibi is my legal-wedded wife:"
7. In reply to yet another question put by the Court, as to "whether he wished to produce any evidence in defence", he produced attested copies of the statements of Maulvi Sarfraz Ahmad Nikah Khawan and one Javaid Khan, recorded before the Judge, Family Court, Haripur, which were exhibited as D.2 and D.3 respectively. He, however, refused to appear as a witness of his own under section 340(2), Cr.P.C.
7-A. Muhammad Ashraf accused while making statement under section 342, Cr.P.C. Denied all the allegations put forth by the prosecution and pleaded his innocence. He, however, supported the plea taken by Muhammad Aslam accused that the abductee had contracted a valid marriage with Muhammad Aslam of her own accord. He further stated that he was falsely implicated in this case as he was brother of Muhammad Aslam accused who had contracted a valid Nikah with Mst.
Rafia Bibi. He also refused to produce any defence evidence and denied to appear as a witness of his own under section 340(2), Cr.P.C.
8. Abdul Jabbar accused while making statement under section 342, Cr.P.C. Also denied all the charges against him and pleaded innocence. He stated that according to his knowledge the alleged abductee had contracted a valid marriage with Muhammad Aslam accused of her own accord. He further stated that he was falsely charged being the brother of Muhammad Aslam, accused who had contracted a valid Nikah with Mst. Rafia Bibi. He, however, declined to produce any defence evidence and also denied to appear as a witness of his own under section 340(2), Cr.P.C.
9. After conclusion of the trial, the learned trial Court convicted and sentenced the appellants as stated above, hence this appeal.
10. We have heard the learned counsel for the appellants as well as learned counsel for the complainant and the State and have perused the record carefully with their assistance.
11. Learned counsel for the appellants after having taken us through the evidence on record and the specific plea of Muhammad Aslam appellant regarding his entering into a valid Nikah with the abductee, which had failed before the learned Judge, Family Court as well as before the learned appellate Court, opted not to press this appeal on merits and had prayed for the reduction in the sentence of imprisonment, awarded to him by the learned trial Court, as the same was harsh and severe in the circumstances of this case. Learned counsel has also not seriously challenged the conviction and sentences passed against Muhammad Ashraf appellant, but has vehemently argued the case of Abdul Jabbar appellant who, according to him was, falsely implicated in this case, being brother Of the principal accused, otherwise there was no reliable evidence to connect him with the crime. While laying emphasis on his contentions in this respect, he submitted that Abdul Jabbar appellant was neither named in the F.I.R. Nor his name has appeared in the evidence of any other witness, except the abductee Mst. Rafia Bibi whose solitary statement was not sufficient for basing the conviction of the appellant.
12: Learned counsel for the complainant as well as State had vigorously defended the impugned judgment by submitting that the version of the prosecution stands proved through reliable evidence, which was also stamped as truthful by the learned Judge, Family Court wherein the suit for restitution of conjugal rights filed by Muhammad Aslam appellant was dismissed while the suit for the jactitation of marriage was decreed in favour of the abductee.
13. Learned counsel for the State, however, conceded for the reduction in the sentence of Muhammad Aslam appellant proportionately as per gravity of the offence.
14. We have given our anxious consideration to the submission made by the learned counsel for the parties and have also perused the impugned judgment. The prosecution has kept its reliance mainly on the testimony furnished by Mst. Tazeem Akhtar P.W.4 the complainant and Mst. Rafia Bibi, the abductee P.W.3 coupled with the statements of the Lady Dr. Irshad Bibi P.W.5, Doctor Khalid, Radiologist P.W.6, Dr. Waheed-ur-Rehman P.W.10 and Muhammad Irshad P.W.11 besides, the positive report of the Chemical Examination Exh. P. B.
15. Mst. Tazeem Akhtar, P.W.4 the complainant being the inmate of the house, wherefrom Mst. Rafia Bibi was abducted, by the absconding accused Muhammad Sabir, Gulfraz and Rafaqat, was a natural witness of the occurrence. She has made a coherent statement in the Cour( by reiterating the facts reported by her to the police immediately after the occurrence in which she had implicated only those accused who had trespassed in her house and had forcibly taken away Mst.
Rafia Bibi, for subjecting her to Zina by Muhammad Aslam accused or to marry her against her wishes with him. Her statement to this effect was materially corroborated by the abductee Mst.
Rafia Bibi, who has categorically stated that Muhammad Sabir, and Gulfraz, armed variously with Klashnikov and pistol, alongwith Rafaqat, entered her house and after catching hold of her from her hands had dragged her towards the road side, wherefrom she was forcibly taken away towards Nalla by boarding her in a sky colour car, and was kept for two nights in the jungle in the house of Abdul Rashid accused and thereafter, she was taken to Chargani Jungle where Abdul Jabbar accused in police uniform joined them, and took them to Islamabad by boarding a Datsun Taxi near Sangra, in which Abdul Jabbar made her sit with him in its front portion while other three accused had occupied the rear portion of the vehicle and they took her to the house of Sabir accused in Bari Imam. She also declared that Abdul Jabbar and Sabir accused forced her to affix thumb-impression on some papers after shifting her to an unknown place where they kept her for one month, and was subjected to Zina-bil-Jabr by ,Muhammad Aslam accused, who also committed forcible Zina with her in the house of Niamat accused where she was kept for another 4/5 days.
16. This statement of the abductee was duly substantiated by the testimony furnished by Dr. Irshad Bibi P.W.5, who had deposed that she had examined Mst. Rafia Bibi on 16-6-1995 and had found that her hymen was not intact and she was admitting two fingers easily, thus, disclosing thereby that she was subjected to Zina, and was not a virgin. This fact was further strengthened by the positive report of the Chemical Examiner Exh.P.B. Regarding the vaginal swabs which were found to have been stained with semen.
17. Not withstanding the fact that the learned counsel for the appellants has not challenged the conviction of the two appellants, Muhammad Aslam and Muhammad Ashraf, we have critically scrutinized the evidence on record and particularly the statements made by P.W.3 Mst. Rafia Bibi, the abductee and Mst. Tazeem Akhtar P.W.4 so as to appraise their evidence qua the implication of the appellants in the larger interest of justice. We find that both the witnesses have made consistent, straightforward and truthful statements, which inspired confidence and were worth reliance. Despite the fact that the two P.Ws. Were subjected to a lengthy cross-examination by the defence, but nothing favourable to the accused could be brought on the record so as to make the case doubtful against any of them. Besides, the testimony furnished by P.W.3 Mst. Rafia Bibi the abductee was amply corroborated by the medical evidence deposed to by doctor. Irshad Bibi P.W.5 whose testimony was further strengthened by the positive report of the Chemical Examiner which has been tendered in evidence as Exh.P.B., proving thereby that the abductee was subjected to sexual intercourse.
18. We have also considered with anxiety, the evidence on record, with particular reference to the culpability or otherwise of Abdul Jabbar appellant in the light of the contentions raised by his learned counsel, but we do not feel pursuaded to extend him the relief of acquittal, because of the fact that the abductee had assigned an active role to the appellant in her statement made before the learned trial Court, in which she has categorically stated that Abdul Jabbar appellant wearing police uniform had joined the accused party at Changrani jungle and had then taken them to Islamabad, and from there to Bari Imam in the house of Sabir accused, after making her to sit with him in the front portion of the Datsun Taxi, while other accused had occupied the rear portion of the said vehicle. She also deposed that she was thereafter shifted to an unknown place, where Muhammad Sabir and Abdul Jabbar accused forced her to affix her thumb-mark on some papers and was kept there, for one month and was subjected to Zina-bil-Jabr by Muhammad Aslam accused. We find nothing on record to disbelieve the above assertions of the abductee, which have clearly implicated Abdul Jabbar appellant as an active member of the accused party and helpful to the main accused in achieving his illicit object. We, therefore, feel constrained to accept her testimony in toto in this respect too, as the same has already been evaluated by us and declared consistent, truthful, and worth reliance to warrant the conviction of the appellant. Hence the contention raised by the defence having no force stands repelled.
19. We have carefully examined the specific plea of Muhammad Aslam accused of entering into a valid Nikah with the abductee through Nikahnama Exh.D.1 which was substantiated by the statements Exhs.D.2 and D.3 of Maulvi Sarfraz Ahmad and Sardar Muhammad Ayub respectively, who had appeared as witness before the learned Judge, Family Court in the suit of conjugal rights filed by the accused, but were disbelieved by the said Court as well as the learned appellate Court and the Nikahnama Exh.D.1 was declared as fake. We too have assessed the intrinsic worth of the above said documents/statements, which being manipulated and manoeuvered do not inspire confidence, and thus, are not worth reliance. We, therefore, proceed to discard the defence plea as unfounded and baseless.
20. In view of the defence plea the main question left to be adjudicated would be as to whether the sexual intercourse committed by Muhammad' Aslam appellant during the period, the abductee was kept by him in his custody could be termed as "Jammaa" or Zina-bil-Jabr. Since Aslam accused has not come out successful in the proceedings of restitution of conjugal rights initiated by him before the Family Court, as such his claim of entering into a legal marriage with Mst. Rafia Bibi would succumb to nullity in the eyes of law, and the accused would be held respOnsible for the commission of Zina-bil-Jabr and be liable to be convicted under section 10(3) of this Ordinance.
21. The upshot of the above discussion is that the testimony furnished by Mst. Rafia Bibi, the abductee P.W.3 duly corroborated by the statement of Mst. Tazeem Akhtar P.W.4 regarding her abduction by Muhammad Sabir, Muhammad Ashraf and Rafaqat accused, and by the medical as well as circumstantial evidence, inspired confidence, and were worth reliance. Therefore, we are of the confirmed view that the prosecution has proved its case, beyond any reasonable doubt against the appellants who have been rightly convicted and sentenced by the learned trial Court.
22. We have, however, considered the quantum of sentence awarded to Muhammad Aslam, appellant, we feel that the same being excessive, required interference by this Court. We, therefore, are of the considered view that the sentence of 10 years' R.I. Would meet the ends of justice in the peculiar circumstances of this case.
23. Resultantly, while maintaining the conviction of Muhammad Aslam appellant under section 10(3) of this Ordinance, we reduce his sentence from 15 years' R.I. To ten years' R.I. With tine of Rs,10,000, in default to undergo R.I. For one year.
24.' The conviction and sentence passed against Muhammad Ashraf and Abdul Jabbar appellants under section 16 of this Ordinance by the learned trial Court are maintained accordingly.
25. The sentence of whipping passed against the three appellants being not available due to the coming into force of the Abolishment of Punishment of Whipping Act, 1996 (Act III of 1996) stands remitted. The benefit of section 382-B, Cr.P.C. Shall remain intact.
' With this modification in the sentence, the appeal stands dismissed.