Mst. BAKHSH ILAHI vs THE STATE and 6 otherss

' SAEED-UR-REHMAN FARRUKH, J.--- After hearing the learned counsel for the appellant we find that this appeal lacks merit.

' The prosecution case in nutshell is as under; one Haji Ghulam Farid, initially got a case registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called "the Ordinance") at Police Station Basti Malook, District Multan on 17-12-1989 wherein he levelled allegation of Zina-bil-Raza against his wife Mst. Bakhsh Illahi (appellant in the present appeal) with one Muhammad Iqbal, who had been making a declaration that the appellant was his legally-wedded wife. Ghulam Farid alleged that after three days of his marriage with Mst.

Bakhsh Illahi appellant, two persons namely Allah Ditta and Muhammad Bakhsh took her away with them and refused to return her. According to Haji Ghulam Farid, Muhammad Iqbal developed illicit liaison with Mst. Bakhsh Illahi during the said period. This case was, after investigation, got cancelled by the police as being false.

2. Thereafter, Haji Ghulam Farid lodged a private complaint under sections 10 and 16 of "the Ordinance" against Mst. Bakhsh Illahi appellant and others which, too, was dismissed by the Additional Sessions Judge on 25-7-1991. Mst. Bakhsh Illahi instituted a suit for jactitation of marriage against Haji Ghulam Farid which was decreed in her favor on 2-2-1994.

3. It was in this backdrop of protracted civil and criminal litigation that the appellant Mst. Bakhsh Illahi filed a complaint under sections 3 and 5 of Qazf (Enforcement of Hadd) Ordinance VIII of 1979 against Haji Ghulam Farid and respondents Nos.2 to 7. The learned trial Court vide judgment, dated 14-9-2000, convicted Haji Ghulam Farid for Offence under section 11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and sentenced him to one year's R.I. With a fine of Rs,10,000 to be paid to the appellant and in default to undergo three months' S.I. Respondents Nos.2 to 7 were acquitted.

4. At the very outset, learned counsel for the appellant informed us that Haji Ghulam Farid did not challenge his conviction and sentence and had come out of jail after serving out the sentences.

Not only that, Mst. Bakhsh Illahi had also, in the meantime, obtained a decree for a sum of Rs,one lac against Haji Ghulam Farid as damages for levelling false allegation of Zina against her, thereby tarnishing her dignity and honour.

5. We went through the entire record with the assistance of the learned counsel to find out as to whether, indeed, there was cogent and A convincing evidence available on record to connect the respondents Nos.2 to 7 with the offence alleged against them. We found none.

6. Significantly, Mst. Bakhsh Illahi appellant levelled vague rather wild allegation of false accusation of immorality against her on the part of by respondents Nos.2 to 7. On her own showing she was not present at the time of alleged accusation. The place and the time of alleged cognizable conduct of respondents Nos.2 to 7 were also not mentioned. She did not cite any person, during her deposition in Court, to support her plea that the said alleged accusation was made against her in his presence. Her testimony was worthless to say the least.

7. Ahmad Khan P.W.2 deposed that it was after two months of marriage of Mst. Bakhsh Illahi that a Panchait was convened in Chak No,2-Faiz and it was there that Haji Ghulam Farid (convicted co- accused of respondents Nos.2 to 7) made accusation of immorality against Mst. Bakhsh Illahi appellant as she was living in adultery with Muhammad Iqbal. As against respondents Nos.2 to 7 the exact words used by him in the examination-in-chief were "the remaining accused were also present in that Panchait who supported the accusation of Haji Ghulam Farid". This witness was resident of Cantt. Multan. There is nothing on record to indicate that Haji Ghulam Farid, who allegedly convened the Panchait was either related to him or friendly towards him. He did not utter a word as to why he went all the way from Multan to Chak 2-Faiz to participate in Panchait. No reliance could be placed on his testimony.

8. The last witness produced by the prosecution was Haji Elahi Bakhsh P.W.3 father of Mst. Bakhsh Illahi appellant. He in his examination-in-chief did not say a word about story of Panchait being convened wherein respondents Nos.2 to 7 were present. He made a general statement to the effect "all these accused persons made false imputation on my daughter with mala fide intention". No reliance can be placed on this assertion to hold the private respondents to be guilty of serious offence of Qazf. It was apparent from his cross-examination that there was longstanding history of enmity between the parties both, civil as well as criminal.

' We find substance in the plea of the respondents that they were roped in this case only due to party faction in the village.

9. The learned trial Judge, after due appraisal of the evidence, rightly reached the conclusion that the prosecution had miserably failed to prove its case against the private respondents. He was fully justified, in the facts and circumstances of the case, to acquit them. The double presumption of innocence accruing in favor of the respondents due to their acquittal could not be distributed in this appeal in the absence of compelling circumstances.

10. It is manifest that Mst. Bakhsh Illahi was actuated by sheer malice to falsely implicate the respondents in her complaint. They were, firstly, forced to face the agony of wholly uncalled for trial from 1994 to the year 2000. Not feeling satisfied with the untold hardship and misery caused to the respondents due to the above trial she filed the present frivolous appeal against their acquittal and dragged them to this Court till today. The appeal is dismissed as being wholly devoid of force. Her conduct in this behalf is highly deprecated.

' In the facts and circumstances of the case, we are constrained to impose fine of Rs,50,000 under section 544-A, Cr.P.C. Upon the appellant for indulging in false litigation against respondents Nos.2 to 7 resulting in mental anguish as well as financial loss to them over a period of 12 long years. All the time they remained under the apprehension of being convicted in a false case foisted upon them. The amount of fine, when recovered, shall be paid to respondents Nos.2 to 7 as compensation, pro rata.