' This Jail Criminal Appeal No,152/I of 2002 filed by Muhammad Rafique alias Baghela son of Allah Bakhsh is directed against the judgment, dated 20-6-2002 of Additional Sessions Judge, Samundri (Faisalabad), awarding punishment of 7 years' R.I. Under section 16, Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 for enticing away Mst. Shazia Shameem and a fine of Rs,30,000. In case of non-payment of fine, the appellant shall suffer further S.I. For ,6 months. The appellant, was further convicted and sentenced to 10 years' R.I. Under section 10(2) of the Ordinance for committing Zina liable to Tazeer with Mst. Shazia Shameem and a fine of Rs,40,000. In case of nonpayment of fine, he shall further undergo S.I. For 6 months.
2. Briefly stated, one Mst. Khurshid Bibi filed a complaint dated 8-3-1999 to the D.S.P. Samundri, District Faisalabad, Exh.P.A. That her niece Mst. Shazia Shameem was abducted in between 20th/21st January, 1999 at about 11-00 p.m. By Muhammad Sharif son of Jan Muhammad and the appellant Muhammad Rafique alias Baghela son of Allah Bakhsh and that action be taken. It is in the complaint that both the above noted persons knocked the door of the house of the complainant and when the door was opened, Mst. Shazia Shameem was forcibly abducted. It was further stated that Rehmat Ullah and Muhammad Sharif P.Ws. Came on the spot when there was hue and cry.
3. The complaint was addressed to the D.S.P., who in turn sent the same to the S.H.O. And then to Maqbool Ahmad S.-I. Initially incomplete challan was submitted and finally Challan No,156/2000 dated 1-4-2000 was filed.
4. The Additional Sessions Judge, Samundri charge-sheeted (1) Muhammad Rafique alias Baghela son of Allah Bakhsh (2) Muhammad Sharif son of Jan Muhammad (3) Muhammad Shahid son of Muhammad Rafique on 15th May, 2000 on two counts under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 and secondly under section 10(3) of the same Ordinance. The accused persons pleaded not guilty and wanted to contest the charges if necessary. The trial Court examined 11 witnesses namely P.W.1 Nazir Ahmad P.W.2, Asghar Ali, P.W.3 Shaukat Hayat, P.W.4 Muhammad Sharif, P.W.5 Rehmat Ullah, P.W.6 Mst. Shazia Shameem, P.W.7 Maqbool Ahmad, P.W.8 Mst. Khurshid Bibi, P.W.9 Muhammad Younis, P.W.10 Farhana Ameen, P.W.11 Robina Attique. Thereafter, the statements of the accused under section 342, Cr.P.C. Were recorded on 15-2-2002, in which the allegations were vehemently denied. Nabi Bakhsh Luck, D.S.P. Punjab Constabulary Makuana, Faisalabad appeared as D.W.1 with lengthy cross-examination.
5. Muhammad Rafique, appellant filed the present Jail Criminal Appeal while there was none by accused Muhammad Shahid and Muhammad Sharif, who were acquitted by the learned Additional Sessions Judge, Samundri (Faisalabad) vide judgment, dated 20-6-2002.
6. Mr. Muhammad Saliheen Mughal, Advocate appeared on behalf of the appellant while the State was represented by Syed Muzahir Naqvi, Advocate.
7. I have heard the arguments of both the learned counsel and have minutely gone through the evidence/record and find that Muhammad Shahid son of Muhammad Rafique was not named in the complaint nor in the F.I,R. No,126, dated 12-3-1999 and it is not understandable how he has been roped into the case. Neither his name was mentioned by complainant Mst. Khurshid Bibi nor her niece Mst. Shazia Shameem, which clearly means that the police has invented the case against this accused person. If that be the position then the question arises how much credibility can be attached to the entire case. I am of the view that the action of the police in involving, the accused Muhammad Shahid is somewhat startling.
8. The learned counsel for the appellant vehemently stated that the alleged occurrence took place between 20th/21st January, 1999 at 11-00 p.m. And for the first time application was filed by the complainant Mst. Khurshid Bibi on 8th March, 1999 after the laps of 50 days and there is no explanation of this long delay, which is fatal to the whole case.
9. I am in agreement with the learned counsel for the appellant and after carefully going through the evidence/record, I find that delay has not at all been explained, which is fatal to the case of prosecution. The learned trial Court has not given any positive finding on the issue of delay.
10. Main reliance has been placed by the learned counsel for the State on the statement of P.W.4 Muhammad Sharif son of Nizam Deen and P.W.5 Rehmat Ullah son of Muhammad Ibrahim, who reached the place of occurrence when there was a noise by the complainant and her niece. Mst.
Khurshid Bibi complainant was previous wife of P.W.4 Muhammad Sharif while one of the sisters of the complainant Mst. Hanifa is wife of Rehmat Ullah P.W.S. These witnesses were not residing near about the house of the complainant and it is not possible to believe how they suddenly appeared.
Someone else in the locality must have heard the noise but no one came to the spot. In these circumstances, I am quite clean in my mind that P.W.4 and P.W.5 are chance witnesses and have been produced by police to support the case of the prosecution. Furthermore these two witnesses are the relatives of the complainant and their evidence cannot be safely relied 'upon in this case. I am not agreement with the learned counsel nor there is any rule that the evidence of the relatives must be rejected outright. However, in this case it is easy to infer that these two witnesses P.W.4 and P.W.5 have appeared and their statements cannot be believed. Both the witnesses were subjected to very lengthy examination and nothing has come out in favour of the prosecution rather the inference is that they have deposed in order to support a false version of the prosecution.
11. Coming to the statement of Mst. Shazia Shameem, the abductee, P.W.6, it is stated by her that Muhammad Rafique accused also removed the gold ear-rings, four bangles two finger rings' and Rs,600 were also snatched by Muhammad Rafique accused, on the other hand, it is in the complaint of Mst. Khurshid Bibi that she made a search and found that the aforementioned articles were missing. This means that Mst. Shazia Shameem was not wearing the aforementioned jewellery on her person otherwise Mst. Khurshid Bibi could have certainly stated so. After perusal of her statement, I find that there were many occasions when she could release herself from the clutches of Muhammad Rafique. The statement of P.W.8 Mst. Khurshid Bibi also gives no help to the prosecution. She was confronted with her statement earlier made under section 161, Cr.P.C. Where she admitted some of the important events not earlier recorded.
12. P.W.9 Muhammad Younis son of Rehmat Ullah stated that he made a search of the accused from 22-3-1999 to 26-4-1999 and arrested Muhammad Rafique on 27-4-1999 and recovered the abductee and recorded her statement under section 161, Cr.P.C. On the following day (28-4-1999) the abductee was medically examined and was handed over to the complainant. As earlier stated, she was examined on 28-4-1999 'after spending a night with Mst. Khurshid Bibi. It is not a happy situation that the police could not arrest the accused nor recover the abductee for many months.
In this way, the statement of D.W.1 Nabi Bakhsh Luck could not be ruled out of consideration when stating that "the story of forcible abduction is not correct" and that "accused Muhammad Sharif and Muhammad Shahid were declared innocent by me". In the opening para. Of his statement, D.W.1 it is stated that he had conducted investigation of this case from 26-6-1999 to 2-7-1999.
According to his investigation, Mst. Shazia Shameem, abductee of this case had gone with Muhammad Rafique twice of her own accord, once in the instant case and prior to this case. This D.W.1 was cross-examined at length and nothing could be found in favour of the prosecution.
13. As to the medical evidence, Farhana Ameen, P.W.10 Ex-woman Medical Officer, Tehsil Headquarter Hospital, Samundri, District Faisalabad examined the alleged abductee on 28-4-1999 and her opinion is as under:-- "Local examination: (i) per abdomen: No findings.
(ii) Per vagina: No sign of violence Hymen was torn and healed. Vagina admitted two fingers tightly."
' She further stated that "three vaginal swabs were taken and sent to the Chemical Examiner, Government of Punjab, Lahore to detect spermatozoa. Exh.P.F. Is the carbon copy of the medico- legal report. As against the column "the kind of weapon, used or poison suspected in case of poisoning" it is stated that it is a rape case. The prosecution has failed to connect the commission of crime with the appellant, therefore, it is not safe to rely upon the statement of this witness.
According to the Chemical Examiner's report Exh.P.G. Dated 12-2-2002, result was described in para.5 and the same is as under:-- "The above three vaginal swa bs are stained with semen."
14. P.W.11 Robina Attique Ex-Woman Medical Officer Tehsil Headquarter Hospital, Samundri, District Faisalabad stated in her report Exh.P.H. Dated 12-2-2002 that she perused the report of Chemical Examiner and in her view rape has been committed with Mst. Shazia Shameem. There is no such version in the report of the Chemical Examiner involving the appellant.
15. Viewed from all angles, I have no doubt in my mind that the prosecution has failed to prove the case. The sentence and conviction of the accused by the trial Court is not justified in law. I, therefore, set aside the judgment, dated 20-6-2002 of the trial Court awarding punishment to accused Muhammad Rafique alias Baghela son of Allah Bakhsh under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979.
16. In view of the above, I accept this appeal and the accused shall be immediately released in case he is not required by the police in any other case.