' This appeal is directed against judgment, dated 6-8-2001, by Additional Sessions Judge, Jampur, District Rajanpur, whereby learned trial Judge, convicted the appellant and Talib Hussain, tried alongwith her, under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance and sentenced each of them to undergo. R.I. For 7 years.
' Ghulam Yaseen and Manzoor Hussain, tried alongwith them, were acquitted vide the same judgment.
2. F.I.R. Eth.P.A./I, was registered on 13-6-1999, at 10-45 a.m., at Police Station, Dajal, on the basis of which, investigation of this case was taken up, resulting wherefrom appellant and Talib Hussain were tried, convicted and sentenced as mentioned above. The case had been registered on the statement of Mst. Sharman, appellant herein.
' Mst. Sharman had stated therein that she had married Ghulam Yaseen son of Karim Bakhsh, 15 years ago. They had 4 sons and 4 daughters. Her husband was working in Saudi Arabia since 5/6 years. About 3 months prior to 13-6-1999, she was sleeping in her house alongwith 3 daughters.
Talib Hussain (co-convict) armed with pistol, Ghulam Yaseen, armed with gun and Manzoor Hussain, empty-handed, entered their Haveli. Talib Hussain caught her from the arm and dragged her out, where a red coloured Dalla was standing. They put her forcibly in the Dalla. Abdul Rahim (given up P.W.) and Muhammad Ali, P.W.3, came hearing the hue and cries, raised by her. Ghulam Yasin threatened them not to come near. Accused drove her away towards southern side. They reached at an unknown place in the hill area, by morning. Ghulam Yaseen and Manzoor Hussain returned from there, while 2 unknown persons used to remain there. Talib Hussain had been committing Zina with her. She claimed that yesterday i,e, 12-6-1999, she returned from there on finding opportunity to escape and went to the house of her son Shah Bakhsh.
' She alleged that Talib Hussain had removed her 4 golden bangles and 2 ear-rings valued Rs,36,000 which she was wearing.
3. Habib Ullah, A.S.-I., after dispatching statement Exh.P.A., to the police station, for registration of case, visited the spot, prepared site plan Exh.P.C. And recorded statements of the P.Ws. Under section 161, Cr.P.C. Talib Hussain was arrested by him on 26-7-1999. He did not arrest Manzoor Hussain and Ghulam Yaseen, on having found them innocent. Photostat copy of a plaint for dissolution of marriage, photostat copy of an affidavit of Mst. Sharman and photostat copy of the application submitted by Mst. Sharman before Khidmat Committee produced before him by some of the persons who had appeared in defence of Manzoor and Yasin.
' He arrested Mst. Sharman in this case as accused on 31-7-1999 and got her medically examined on the same day. After completion of necessary investigation, he got the challan submitted to Court against Talib Hussain and Mst. Sharman under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance vide report under section 173, Cr.P.C., dated 16-8-1999. Names of Ghulam Yasin and Manzoor Hussain, named in the F.I.R. As accused were not mentioned even in Column No,2.
' Learned Additional Sessions Judge, to whom the Case was entrusted for trial, summoned Ghulam Yaseen and Manzoor Hussain, also, to face trial.
' On appearance of the accused Talib Hussain, Ghulam Yaseen and Manzoor Hussain were charged for having committed offence under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, while Talib Hussain and Mst. Sharman were charged under section 10(2) of the same Ordinance. On their having pleaded not guilty, he proceeded with the trial.
4. Statements of 5 P.Ws. Were recorded at the trial.
' Muhammad Aslam, M.H.C., who had recorded F.1.R: Exh.P.A./1, on receipt of statement Exh.P.A., made by Mst. Sharman (appellant) before Habibullah, A.S.-I., appeared as P.W.1 and stated those facts on oath.
5. Statement of Mst. Sharman (appellant herein) was recorded as P.W.2. In that statement she repeated the same facts which she had got recorded in her statement Exh.P.A., on the basis of which formal F.I.R. Exh.P.A./1 had been registered at the police station. She added that the police had challaned her in this case as accused. She claimed that she had filed a writ petition before Lahore High Court Bench, at Multan, for transfer of investigation. She declared that she had been falsely involved in this case. During cross-examination, she admitted that Muhammad Ali, P.W. Was her son-in-law. She gave out that Talib Hussain, and Manzbor Hussain accused were brother-in- law inter se while Ghulam Yaseen was son of sister of Talib Hussain. She denied the suggestion that she was an ill-reputed woman. She denied the suggestion that she had filed any suit for dissolution of marriage against her husband in 1998. She denied the suggestion that she had sworn any affidavit in the presence of her son. She denied the suggestion that she had fled away from her house in connection with illicit relations. She denied the suggestion that she had been beaten by her son and son-in-law. The suggestion that she had got a false case registered at the instance of her relatives was denied by her. She denied the suggestion that she was vagabond, loose character and ill-reputed woman.
6. Muhammad Ali, P.W.3, son-in-law of Mst. Sharman, appeared as P.W.3. He supported statement made by Mst. Sharman to the extent of her abduction by the 3 accused named in the F.I.R., armed with firearms. He added that Mst. Sharman had returned home about 3 months, after the occurrence. He claimed that he had gone alongwith Mst. Sharman to the police station and her statement was recorded. He claimed that his statement under section 161, Cr.P.C., had also been recorded. During cross-examination, he stated that after the abduction of Mst. Sharman they had informed the police about this occurrence. He stated that when Mst. Sharman had returned home he was not present there. He denied the suggestion that he had not seen the occurrence of abduction. The suggestion that accused named in the F.I.R. Were roped falsely was also denied by him. He denied the suggestion that he had made a false statement, being son-in-law of Mst.
Sharman.
7. Lady Dr. Surraya Nasrullah, who had medically examined Mst. Sharman on 31-7-1999, appeared as P.W.4. She stated that she had found the hymen of the examinee torn old and vagina capable of admitting two fingers. She had observed presence of whitish discharge. She had removed two vaginal swa bs and sent the same to the office of the Chemical Examiner, for detection of semens and reserved her opinion. During cross - examination, she stated that no final opinion is given about the rape without report of Chemical Examiner.
8. Habibullah, A.S.-I. Who had investigated the case and had got the challan submitted to Court, appeared as P.W.5 and deposed those facts in detail (salient feature of his examination-in-chief have been noted in an earlier para.). He had also given the names of some persons who had submitted affidavits before him regarding innocence of Manzoor Hussain and Ghulam Yaseen accused. During cross-examination, he admitted that Mst. Sharman had not been recovered from the possession of the accused. He stated that it had come to his knowledge that Mst. Sharman had also left her house many times and she was not a woman of good character and was running a brothel house. He denied the suggestion that Sharman had filed a writ petition before the High Court for transfer of investigation on the ground that many other accused had been let off by the police. He stated that neither investigation had been transferred nor investigation had been done by Bashir Ahmad, D.S.P., Jampur. He stated that none of the persons who had produced affidavits before him had claimed in that affidavits that they had seen 'Mst. Sharman committing Zina with Talib Hussain accused. He admitted that he had not collected evidence regarding Zina-bil-Jabr with Mst. Sharman.
9. Appellant during statement under section 342, Cr.P.C. Denied the prosecution case and pleaded innocence. In answer to the question, "why this case against you and why the P.Ws. Have deposed against you?", she stated as follows:-- "I am innocent. I was forcibly abducted by my co-accused alongwith some other persons. They took me to the mountains where Talib Hussain accused committed Zina-bil-Jabr with me. Finding opportunity, I came back to my house after three months of my abduction. I went to the police station and got recorded F.I.R. Against the accused but the police in connivance with the accused persons made me accused in this case falsely. The P.Ws. Have supported my version during evidence in the Court. Only Investigating Officer of the case has deposed against me falsely in collusion with the accused person who also made me accused in this case."
' She produced in defence Exh.D.A., copy of Writ Petition No,6003 of 1999. However, she had not chosen to make statement under section 340(2), Cr.P.C.
10. I have heard the arguments of the learned counsel for the parties.
In this case F.I.R. Had been lodged by the appellant herself, wherein she had in a categoric manner levelled allegation of her abduction by Talib Hussain and the acquitted accused armed with a gun and a pistol. She had emphatically levelled allegation of commission of Zina, with her by Talib Hussain.
' When she was put to trial after arrest she had made same statement under section 342, Cr.P.C., meaning thereby that she was consistent on her stand till the end of trial. Prior to that she had filed a writ petition before the High Court for transfer of investigation. In that also she narrated the same story at got dictated by her in the F.I.R.
' None of the P.Ws. Produced at the trial had stated that he had seen the appellant committing Zina with Talib Hussain or with anybody else. Only witness who can be termed to have made statement against her was Habib Ullah, A.S.-I. All that he stated against her was that some persons who had appeared before him during investigation, had stated that Talib Hussain had illicit relations with Mst. Sharman. During cross-examination, he had admitted that none of those persons who had spoken about bad character of the appellant, had claimed that, he had seen Mst. Sharman, committing Zina with Talib Hussain or anybody else. He admitted that Mst. Sharman in her statement Exh.P.A., had claimed that all the accused had abducted and Talib Hussain committed Zina-bil-Jabr with her.
' The allegation levelled by the A.S.-I. By making inadmissible statement about the character of the appellant stands demolished by the fact that Muhammad Ali, who was her son-in-law, had appeared as P.W.3 and supported the statement made by her. He had also stated during cross- examination, that he had informed the police about the occurrence of abduction. Had Mst.
Sharman been a Woman of loose character and bad reputation, Muhammad Ali would not have come up to make statement in her favour. Statement of A.S.-I. That her son-in-law had beaten her due to bad character also stands belied by statement of Muhammad Ali.
' Above all what has been noted above that significant, morality in this case, is, that she was examined as P.W. In her own trial as accused, as prosecution witness No,2 wherein also she had repeated the same stand which she had got dictated in the F.I.R. And on other occasions, Over and above that, in this, case, is a fact, that she was allowed to be cross-examined, at length, during which she had stuck to her original stand.
' Apart from all what has been noted above, it is worth-noticing that appellant had consciously kept her away from Talib Hussain by not joining hands with him to engage one Advocate for defence. Instead she made positive statements against him.
' In the circumstances, the impugned judgment is not maintainable, in any case.
' Before coming to this conclusion I had considered the evidence of the positive report received from the office of the, Chemical Examiner and had discarded the same for the reason, that she had been examined 18 days, after she had returned to her house. It is a known phenomena/ proposition. That semens remains active and alive up to 17 days at the best.
' For all the reasons noted above, this appeal is allowed and the appellant is acquitted. She shall be released forthwith if not required in any other case.
' I really do not know that how can this unfortunate woman be compensated for all that she had been subjected and suffered. I am leaving that for Almighty Allah for a judgment on Dooms Day.
' I have consciously avoided making any observation about Talib Hussain co-convict of the appellant, his matter shall be considered, in case, he files appeal.