' Khan Muhammad, Mst. Sakina Bibi and lqbal, were tried alongwith Imam Bakhsh, Haji Rashid, Muhammad and Munir Ahmad, in Case F.I.R. No,221 of 1999, registered at Police Station Donga Bonga, on 17-8-1999, under sections 10(2) and 16 of Offence of Zina (Enforcement of Hudood)
Ordinance, 1979.
' Learned trial Judge. Vide judgment, dated 14-11-2001, convicted Khan Muhammad, Mst. Sakina Bibi and Iqbal under section 16 of the said Ordinance and sentenced each of them to undergo R.I. For 7 years, plus to pay a fine of Rs,10,000 in default whereof to undergo R.I. For 3 months each.
' Mst. Sakina Bibi and Khan Muhammad were acquitted of the charge under section 10(2) of the said Ordinance.
' Remaining 4 accused i,e, Imam Bakhsh, Muhammad, Haji Rashid and Munir Ahmad were acquitted vide same judgment.
2. Mst. Sakina has challenged her conviction and sentence vide Criminal Appeal No,332/L of 2001.
' Khan Muhammad has challenged his conviction and sentences vide Criminal Appeal No,5/L of 2001. Mst. Sakina Bibi is also named as an appellant in this appeal.
' Iqbal has challenged his conyiction and sentence vide Criminal Appeal No,6/L of 2002.
' As all the 3 appeals have arisen from the same judgment, they are being disposed of together.
3. Occurrence in this case, allegedly, had taken place on 30-7-1999, in the house of Ghulam Mustafa (P.W.1) husband of Mst. Sakina Bibi, in village Fatehpur, at a distance of 9 kilometres from Police Station Donga Bonga.
' Ghulam Mustafa had submitted - application Exh.P.A., to D.S.P., Donga Bonga for registration of case against the accused, except Mst. Sakina Bibi on 16-8-1999. D.S.P. Had marked the application to S.H.O., Donga Bonga for necessary legal action.
' On receipt of application at the police station, Muhammad Ashraf, A.S.-I. (P.W.8) had recorded F.I.R.
Exh.P.D. On 17-8-1999 at 9-30 a.m.
' According to F.I.R., complainant was married to Mst. Sakina Bibi, 11 years before the occurrence- They had two children. He had gone to Khiraj Pura, where he was serving, with Ghulam Qadir Dhuddi, on 30-7-1999. On returning home, in the evening, he found his wife and children missing. He searched for them here and there. During search, Muhammad Sharif (given up P.W.) and Shah Behram (P.W.2) told him that they had seen Mst. Sakina Bibi, going alongwith Khan Muhammad and Iqbal, towards Chak Sarkari. They also told him that on their query, Khan Muhammad had told them that since mother of Mst. Sakina was ill, they were taking her to Hafizabad. They also told them that Mst. Sakina was wearing golden ear-rings and Taveez. He stated that he had gone to Fort Abbas, to Haji Rashid and Munir Ahmad (acquitted accused). Haji Rashid etc. Told him that Mst. Sakina etc. Had come there but had gone away, 2/3 days, ago. Thereafter, he went to Muhammad (acquitted accused), he also told the same facts. Thereafter, he went to Imam Bakhsh at Chak Sarkari and demanded the return of his wife. Firstly, they promised but later refused.
' He alleged that his wife had been abducted for the purpose of commission of Zina.
4. Muhammad Ashraf, A.S.-I., after registering the case, visited the spot, prepared site plan Exh.P.E.
And recorded statements of the P.Ws. Thereafter investigation was entrusted to Muhammad Anwar, A.S.-I. On 28-10-1999.
' He arrested Khan Muhammad on 3-11-1999. Mst. Sakina was arrested by him on 4-11-1999. On the same day, he got her medically examined, after seeking permission from the Magistrate. He had got Khan Muhammad, also medically examined on the same day i,e, 4-11-1999. He got the challan submitted to Court, after completion of necessary investigation against Khan Muhammad and Mst.
Sakina Bibi.
' The remaining accused i,e, Iqbal (appellant) and Muhammad, Haji Rashid, Munir Ahmad, Imam Bakhsh (acquitted accused) were not arrested as they had been found innocent. However, their names were placed in Column No,2 of the challan. They were summoned by the trial Judge, when the trial started.
5. Statements of 9 P.Ws. Were recorded at the trial.
6. Dr. Balqees Akhtar, PIV.4, who had medically examined Mst. Sakina Bibi on 4-11-1999, had found her hymen torn old and healed. Her vagina was capable of admitting 2 fingers. She had removed three vaginal swa bs for being sent to the Office of the Chemical Examiner for detection of semens.
On receipt of report Exh.P.F., from there that swabs were stained with semens, she opined that sexual intercourse had been committed with the examinee. Dr. Tahir Hussain, who had medically examined Khan Muhammad, qua potency and had found him fit to perform sexual intercourse, appeared as P.W.3 and deposed those facts on oath.
7. Ghulam Mustafa, complainant, appeared as P.W.1. By and large, he repeated the facts, got recorded by him, in the F.I.R. However, he alleged that Haji Rashid and Munir Ahmad had demanded Rs,5,000 from him for telling him, whereabouts of his wife. During cross-examination, he admitted that Mst. Sharifan, mother of Khan Muhammad was real aunt ({{URDU TEXT}}) of Mst. Sakina Bibi, his wife. He admitted that Mst. Kalsoom wife of Khan Muhammad was real sister of his wife Mst.
Sakina Bibi. He admitted that Khan Muhammad, Imam Bakhsh, Mst. Sharifan and Mst. Kalsoom were residents of Chak Sarkari, while Haji Rashid and Munir Ahmad who were cousins ( "VA% ) of Khan Muhammad and his wife, were residents of Fort Abbas. He admitted that father of Mst. Sakina Bibi was residing in Hafiz Abad. He admitted that Muhammad Sharif (given up P.W.) was his cousin.
He stated that Shah Behram was sitting in the house of Muhammad Sharif where both of them had told him about his wife. He stated that he had gone to Fort Abbas, 5/6 days, after the occurrence where Haji Rashid, Munir Ahmad. And Muhammad, were present. He claimed that his maternal- uncle Noor Jamal, Muhammad Aslam, his brother and Noor Muhammad, father of Mst. Sakina Bibi had accompanied him. He admitted that Mst. Sakina Bibi had filed a suit for dissolution of marriage against him. He denied the suggestion that they had entered into compromise in that case.
However, he admitted that his wife, had returned, to his house alongwith the children. He denied the suggestion that he and his brother had beaten Mst. Sakina Bibi and turned her out of the house and retained the children. He admitted that Mst. Sakina had again filed a suit for dissolution of marriage against him, after the occurrence. He denied the suggestion that his wife had not been abducted by anyone and that she had gone because- of beating.
8. Shah Behram, P.W.2, stated that while going, to Adda Khiraj Pura, alongwith Muhammad Sharif at 10-00 a.m., 2 years ago, he had seen Khan Muhammad and Iqbal Kumhar, taking Mst. Sakina Bibi alongwith her children. He stated that on his inquiry, Khan Muhammad told him, that they were going to Hafizabad to see ailing mother of Mst. Sakina Bibi. He stated that police had recorded his statement during investigation. During cross-examination, he admitted that complainant was his friend and neighbourer. He stated that when he had met the accused, no other person was around.
He admitted that presently children were residing with Ghulam Mustafa (his statement was recorded on 10-5- 2001). He admitted that children had returned home alongwith their mother. He expressed ignorance whether Ghulam Mustafa and his brother had turned her out Mst. Sakina, after snatching the children.
9. Muhammad Ashraf, A.S.-I., P.W.8, gave the details of investigation, done by him. (Details of investigation have been noted in an earlier para.). During cross-examination, he admitted that he had not verified, about the occurrence, from the neighbourhood of Adda Khiraj Pura.
10. Muhammad Anwar, A.S.-I. Appeared as P.W.5 and gave the details of investigation done by him.
(Details have been noted in an earlier para.). During cross-examination, he admitted that he had neither investigated nor inquired from complainant and P.Ws., prior to the arrest of the accused. He claimed that Ghulam Mustafa was with him, when he had arrested the accused. He stated that he had arrested Khan Muhammad from his house. He gave out that he had not verified relationship of Mst. Sakina Bibi with mother and wife of Khan Muhammad. He stated that he had arrested Mst.
Sakina from Chak No,274/HR, Fort Abbas. He disclosed that Munir Ahmad and Haji Rashid were residing in that Chak. He admitted that he had not made entry in the Daily Diary Register of Fort Abbas Police Station about the raid which he had conducted for the arrest of Mst. Sakina Bibi. He also admitted that neither he had mentioned that fact in the Zimnies nor had obtained any help from Police Station Fort Abbas. He denied the suggestion that he had arrested Mst. Sakina Bibi from the house of her sister, wife of Khan Muhammad accused. The suggestion that he had not mentioned the place of arrest of Mst. Sakina in the Zimnies because of that fact was denied by him.
He admitted that after arresting Mst. Sakina on 3-11-1999, he had handed her over to Khan Muhammad and got her medically examined on the following day. He denied the suggestion that he had not investigated the case honestly.
' Statements of remaining witnesses are more or less of a formal nature.
11. Khan Muhammad, appellant, during statement under section 342, Cr.P.C. Had taken up the plea that he and Iqbal had admonished the complainant on his having beaten Mst. Sakina and for having turned her out of house and her children, so he was involved falsely in this case. He stated that Mst. Sakina had been arrested, from his house on 3-11-1999 and handed over to her husband.
The police bad got her medically examined on 4-11-1999.
' In answer to the question, "why this case against you and why the P.Ws. Have deposed against you'?", he stated as follows:-- "The complainant due to family dispute after beating Mst. Sakina Bibi and children turned out from his house and .She was residing at her sister's house with me and we all demonished over his beating and refused to return the hand of Mst. Sakina Bibi to complainant due to this complainant had made false and baseless case against us and the witnesses are interested who have given evidence in connivance with the complainant."
' While professing innocence and denying the prosecution case, he stated as follows, in answer to the question "have you anything else to say?":-- "I am innocent. Mst. Sakina Bibi is like my sister. I could not think such-like act. This case is false one due to family dispute."
12. Mst. Sakina Bibi while denying the prosecution case admitted that all the accused except, Iqbal Kumhar, were her first cousins. While admitting that she was married to Ghulam Mustafa, she declared that she had obtained divorce from the Court. While answering a question, she stated that:-- "Actually my husband severely beat me and turned out me with my children from his house and I alone came at the resident of my sister Kalsoom alongwith children. Nobody had abducted me.
Khan Muhammad accused is like to my brother. Due to family dispute this false case and story was made by my husband to get the compromise."
' While answering another question, she stated that:-- "Khan Muhammad is like my brother. I was residing due to family dispute at the house of my sister where the police in connivance with my husband arrested me on 3-11-1999 and handed over by the police to my husband who committed intercourse at the night time in the menses day and then I was produced by the police before the Lady Doctor. Nobody had intercoursed me except my husband."
' In answer to the question, "why this case against you and why the P.Ws. Have deposed against you?" she stated as follows:-- "This case was registered against me and my other relatives due to family dispute and the P.Ws.
And the police had given the evidence against me and other accused in connivance with my husband. All the P.Ws. Are interested."
13. Iqbal appellant during statement under section 342. Cr.P.C., while pleading innocence stated that he had been involved in this case . Falsely on account of being friend of Khan Muhammad.
' All the remaining 4 accused (acquitted) had also denied the prosecution case as a whole and professed innocence.
' None of the appellants chose to make statements on oath under section 340(2), Cr.P.C. However, Noor Muhammad father of Mst. Sakina Bibi was examined as D.W.1.
' Noor Muhammad stated that Mst. Sakina was married to Ghulam Mustafa 15/16 years ago.
Complainant had turned her out from his house 2 years and 2 months ago (his statement was recorded on 13-9-2001). He gave out that Mst. Sakina Bibi, after being turned out had gone to the house of her sister and Phoophi. He stated that Khan Muhammad was Phoophizad of Mst. Sakina Bibi. Like Mst. Sakina, he also stated that she had been handed over to Ghulam Mustafa, after arrest, for the night and had then been got medically examined. He stated that his daughter had not been abducted by anyone nor subjected to rape. He added that his daughter was not willing to live with her husband and it was due to that, that Ghulam Mustafa had filed a false case against her. During cross-examination, he stated that he was living at a distance of 15/20 miles, from the house of Khan Muhammad. He claimed that police had arrested Mst. Sakina Bibi and Khan Muhammad, from the house of Khan Muhammad, in his presence. He explained that he had gone their on coming to know that police is going there to arrest her. He denied the suggestion that he was happy on the registration of case against Mst. Sakina Bibi because Mst. Sakina Bibi who had left house of her husband without his permission.
14. I have heard the learned counsel for the parties, gone through the evidence and examined the record.
As mentioned earlier, Khan Muhammad and Mst. Sakina Bibi who had been charged for commission of offence under section 10(2) of Zina (Enforcement of Hudood) Ordinance, were acquitted of the said charge. Neither the State nor the complainant have challenged that part of the judgment. So chapter of the case to that extent stands closed.
15. The only evidence, which can attract the provisions of section 16, against Khan Muhammad and Iqbal, is, the statement made by Shah Behram, P.W.2. All that, he claimed, to have seen, was, that he had seen Mst. Sakina Bibi going alongwith Khan Muhammad and Iqbal. He had also stated that on his query, Khan Muhammad had told him that mother of Mst. Sakina was ill in Hafizabad and they were taking her there.
' According to the statement made by him, Muhammad Sharif (given up P.W.) was with him at the relevant time. Muhammad Sharif was first cousin of the complainant. If at all, he had seen Khan Muhammad and Iqbal taking away Mst. Sakina alongwith Sharif then, it would have been Sharif who should have inquired, as to why and where, they were going? Even if he had not put the first question, he would have certainly asked, for more details, on Khan Muhammad having told Shah Behram, that mother of Mst. Sakina was ill and they were taking her to Hafizabad.
The statement made by Shah Behram not only does not find corroboration from any other evidence but lacks credentials also due to the abovementioned reasons.
' Statement made by Ghulam Mustafa that during search, Shah Behram and Muhammad Sharif had met him, in the house of Muhammad Sharif and they had told him that they had seen Khan Muhammad and Iqbal, taking away Mst. Sakina Bibi, is, not admissible, for the reason that Muhammad Sharif was not examined at the trial and Shah Behram had not stated, that he had told Ghulam Mustafa about the factum of his having seen Mst. Sakina going alongwith Khan Muhammad and Iqbal Kumhar.
' There is no other evidence on record in that regard. For reasons noted above, no implicit reliance, can be placed on the statement of Shah Behram.
' Ghulam Mustafa had claimed during his statement that Noor Muhammad, father of Mst. Sakina Bibi had accompanied him to Fort Abbas. Noor Muhammad while appearing as D.W.1, did not support that fact. He was not questioned in that regard during cross-examination by the counsel for the State and the counsel for the complainant.
' The conduct of the complainant throughout does not inspire confidence. He had not disclosed the details while lodging F.I.R. I as well as while making statement during examination-in-chief, about the relationship of Mst. Sakina with Khan Muhammad, Haji Rashid and Munir Ahmad as well as the other accused, except Iqbal. It was during this cross-examination that it came on record that Khan was not only husband of Mst. Kalsoom, sister of Mst. Sakina Bibi, but was also son of her Phoophi.
Relationship of Munir Ahmad and Haji Rashid, as cousins of Mst. Sakina, also came to surface during his cross-examination.
' The factum of remaining accused, except Iqbal, being cousins of Mst. Sakina also came on record through the statement of Mst. Sakina.
' The only evidence which can be considered against the appellants is that Mst. Sakina was arrested from Chak No,74/HR, where complainant claimed to have gone to inquire about her, but that evidence is unreliable and not worth placing reliance upon because Muhammad Anwar, A.S.-I., who claimed to have arrested her from Chak No,74/HR, categorically, admitted that he had neither sought help from the police of Police Station Fort Abbas nor had even mentioned in the Zimnies that he had effected arrest of Mst. Sakina from there. As against that statements made by Mst.
Sakina Bibi and Khan Muhammad, appellants, supported by Noor Muhammad that she had been arrested from the house of her sister and Phoophi, possess weight and substance. Thus it is a case of no evidence. The impugned judgment is, therefore, set aside and the appellants are acquitted.
They shall be released forthwith if not required in any other case.
' It is worth-mentioning that Mst. Sakina Bibi is no more wife of Ghulam Mustafa, their marriage has been dissolved by, a Judge, Family Court by decreeing the suit filed by Mst. Sakina Bibi against Ghulam Mustafa, mainly on the ground of maltreatment. The evidence in that regard is on record.
16. Before parting with the judgment I would like to add here, that the trial Judge had committed an error in holding Mst. Sakina Bibi guilty of having committed offence under section 16 of the said Ordinance. Section 16 reads as follows:-- "Enticing or taking away or detaining with criminal intent a woman.--- Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall be punished with imprisonment of either description for a term which may extend to seven years and with whipping not exceeding thirty tripes, and shall also be liable to fine."
' The woman underlined and mentioned in section 16. Quoted above, is, the object, of the commission of offence under section 16. The ingredients of the offence are, that there should a woman, she should be enticed or taken away, concealed or detained with intent to commit illicit intercourse. That being so how can the object of a commission of offence be held guilty of having committed that offence. In this case the woman who was object of the offence according to the prosecution was Mst. Sakina Bibi and object of the offence cannot be held guilty of having committed the same offence. As such conviction of Mst. Sakina under section 16 was not maintainable, even otherwise being illegal.