ZAHOOR Versus STATE

TANZIL‑UR‑RAHMAN, C.J.‑‑ ‑This is an appeal against the judgment dated 11‑3‑1992, passed by learned Additional Sessions Judge, Kandiaro, in Session Case No.89 of 1991 Crime No.12 of 1991 of Police Station Kandiaro, convicting the appellant Zahoor under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentencing him to life imprisonment with whipping numbering ten stripes and also to pay a fine of Rs.10,000 in default of payment of fine six months' R.I. and further convicting both the appellants under section 16 of the said Ordinance and sentencing them to five years' R.I., with benefit of section 382‑B, Cr.P.C.

2. The facts of the prosecution case, briefly stated, are that the complainant Abdul Karim lodged F.I.R. at Police Station Kandiaro on 13‑2‑1991 at 5‑30 p.m. that he was married to Mst. Kamul two years back in the village Pinyal Ujjan. On 12‑2‑1991 at about 2‑00 p.m. he alongwith his wife had gone to cut grass from the land cultivated by them. After cutting some grass he had gone to leave one bundle to his house while his wife was still cutting the grass. On return, he found his wife missing. He searched for her but her whereabouts were not traceable. Late in the night PW Ayub met him who on enquiry told him that while he was returning from Jam. Noorullah he had seen the present appellants taking away his wife towards the village Jam Noorullah. On the next day be went to narrate the incident to his nek‑ward Amir Bakhsh, on whose advice he lodged the F.I.R. .

3. On 15‑12‑1991, the police secured Mst. Kamul from the possession of appellant Zahoor near village Jam Noorullah and also arrested the said Zahoor. On the next day police produced the alleged abductee Mst. Kamul in the Court of Resident Magistrate, Kandiaro and got recorded her statement under section 164, Cr.P.C. On the basis of her statement the police challaned both the appellants namely Zahoor and Saban.

4. The learned trial Judge while acquitting the other two persons and also acquitting the present appellants from the charges under sections 383 and 109, P.P.C.. however, convicted and sentenced the appellants as aforesaid

5. The prosecution in support of its case produced five witnesses. P.W.1 Mst. Kamul, th alleged abductee deposed in her statement that accused Zahoor armed with pistol and accused Saban armed with hatchet reached the ;pot at about noon time and compelled her to accompany them. Due to fear she so did. They led her towards the village of Jam Noorullah where the accused Nooro and Ghulam Hussain were also standing. Uptil village Jam Noorullah they had covered the way of about one mile. Accused Nooro and Ghulam Hussain advised Zahoor and Saban to take her with them and Zahoor and Saban took her in a Traila where accused Nooro and Ghulam Hussain separated. The accused Zahoor and Saban got her down from the traila at a place situated at some distance from Ranipur, where one room was constructed. The accused Zahoor and Saban kept her in that room where accused Zahoor used to persuade her to marry him but she refused. On the following day, accused Saban left that place while accused Zahoor remained with her for another day and continued to persuade her to marry but she refused to do so and preserved her chastity. In the name of Holy Our'an she persuaded accused Zahoor to return her to the village who took her in a bus to return to her village. They got off from the bus near village Jam Noorullah, where the police intercepted, to whom she narrated the facts. The Police took her to the Police Station Kandiaro and so. the accused Zahoor. Her statement under section 164, Cr.P.C. was recorded before the Magistrate. She, however, stated in Examination‑in‑Chief that "accused Zahoor has not committed any thing with me except persuading to marry him. He did also not take any thing from me." In cross‑examination she stated that "there was none present in the adjoining land at the‑ time of incident. The land where the incident took place is at the call distance from the village. The houses are located at the call distance from the place of the incident. I have not seen any body from there as in the manncr I have been taken, I could not look here and there. I have not seen the Otaqs of Zamindars of village Jam Noorullah situated on the road." She further stated that "all the four accused had talked with the driver of the traila and after boarding me accused Zahoor and Saban accused Ghulam Hussain and Nooro had returned. There was driver on the traila and one other person. Due to fear I did not tell the driver of the traila or any other person on the traila to rescue me. Previously I had not gone to Ranipur. That room was located outside in the lands and not in village. It was about sunset time we have got down from the traila". On further cross‑examination she denied the suggestion as incorrect that neither she was taken towards Ranipur by the accused nor any such place is situated there. She, however, admitted that "as accused had agreed to take me back and let off to my house therefore when I was taken by the accused on return to our village in the bus, I had not complained to any body".

6. P.W. 2 Abdul Karim is the husband of the alleged abductee. He is not an eye‑witness. Ht, however, denied the suggestion that neither Ayub met him nor he had disclosed the fact of abduction of his wife by the accused. P.W.3. Muhammad Ayub deposed that on the day of incident at about 2‑00 or 2‑30 p.m. he was returning from village Jam Noorullah on Katcha road when he saw Zahoor and Saban taking Mst. Kamul from some distance. They were at some paces away. He had seen and identified all of them. On his return during the night he narrated the fact to P.W.2 that his wife had been taken by Zahoor and Saban. In cross‑examination he admitted that Mst. Kamul is the sister of Qamar Din and that he is the son of Qamar Din. He did not ask any question from Mst. Kamul when he saw her. He also admitted that Qurban is husband of sister of his father and that it is a fact that there is a dispute between Zahoor, Saban and Qurban who is the son of Amir Bakhsh. P.W.4 Muhammad Hussain and P.W.5 Khair Muhammad are the `Mashirs' of arrest. Admittedly, Muhammad Hussain is the real brother of Mst. Kamul and co‑Mashir Khair Muhammad is the son‑in‑law of his brother.

7. The statements of both the appellants were recorded under section 342, Cr.P.C. The appellant Zahoor further made the following statement:‑‑

"It is submitted that we have got dispute over landed property with Buxo and Amir Bakhsh. Buxo has also two daughters who were married with two sons of Amir Bakhsh namely Gulzar and Sadoro. Qurban son of Amir Bakhsh is married to Mst. Arbeli who is real sister of alleged abductee Mst. Kamul. Whereas Mashir Muhammad Hussain is married daughter of Amir Bakhsh namely Mst. Noor Jehan. P.W. Ayub is married to the sister of complainant Abdul Karim. As such Amir Bakhsh, Buxo and complainant party are closely related inter se. Due to dispute over the landed property the complainant party has been picking up quarrel with us from the side of Amir Bakhsh and Buxo. Mashir Muhammad Hussain is opponent in 107, Cr.P.C. proceedings in Group No.78/90 registered on 20‑12‑1990 complainant Abdul Karim is witness of Qurban and Gulzar in similar proceedings under Group No.79 of 1990 dated 20‑12‑1990 in which I am opponent No.6.

In order to deter us from prosecuting our civil suits Amir lBakhsh and his sons Qurban, Gulzar and Buxo in connivance with complainant party have got filed this false and fabricated case. In fact neither such incident of abduction of Mst. Kamul had taken place nor she had been recovered from my possession as alleged. It is a false Drama registered at police station with co‑operation or connivance of local police. Dr. Ghulam Kadir Sahito of village Jam Noorullah does not own or possess any agricultural land. As such it is a false assertion that the complainant had cultivated the land of Dr. Ghulam Kadir and both, complainant and his wife Mst. Kamul had gone to cut grass from the lands of Dr. Ghulam Kadir.

It is also false assertion that P.W. Ayub had gone to Dr. Ghulam Kadir to obtain from him fertilizer for his lands.

In fact on the day of alleged incident I had gone to Kandiaro town for labour purpose when in the morning was arrested by Kandiaro police at the instance of Amir Bakhsh and his sons Gulzar and Ourban and detained at P.S. Kandiaro and was subsequently challaned in this false and fabricated case. I produce certified true copy of Plaint 2111 of 19 (hl as Exh. filed both the suits on 22‑12‑1990 in the Court of Senior Civil Judge, Naushahro Feroze. I also produce certified true copies of proceedings under section 107, Cr.P.C. N(i.78 of 1990 as Exh. and 79 of 1990 as Exh. I also produce Rubkari issued by Mukhtiarkar Kandiaro."

They also produced five witnesses in defence.

8. Learned counsel for. the appellants submits that the alleged abductee had neither in her deposition in Court nor in her statement under section 164, Cr.P.C., made any allegation of any outrageous act upon her by the appellants, therefore, the offence under section 11 or 16 of the said Ordinance was not made out. It is true that the alleged abductee has not made any sort of allegation against the appellants or any one of them about any act done by them which may be termed as an attempt to commit zina. In fact, she, has clearly slated that Zahoor, the appellant No.1, did not commit anything with her except persuading to marry him. The allegation as to persuading her to marry him (Zahoor), does not appeal to reason as she. was already married.

9. As regards appellant No.2 Sajjan, there is no allegation of any sort which may attract the provisions of section 16 of the said Ordinance. The only statement against him is that he brought meals for her. He is not even alleged to have stayed in the alleged room. The finding of the learned Additional Sessions Judge so as to convict the appellants under section. 16 of the said Ordinance is not based on evidence.

10. As regards the conviction under section 11 of the said Ordinance P,W.3 Muhammad Ayub, no doubt, mentions that he had seen the alleged abductee going alongwith the two appellants but it is surprising that he did not ask her as to why she was going with the appellants, although he is very closely related to her. He being a real nephew would not have passed silently on seeing his paternal‑aunt who was being taken away by strangers at a distance of 5 to 111 feet wide path, away from the village. Furthermore, the husband P.W.2 is stated to have come back in or about ten minutes' time after leaving the bundle of grass at his home. The alleged abductee and the two appellants were going on foot on Katcha path and it is not understandable as to why did he not follow them or raised any alarm or called any one else from the adjoining houses to search for her. It is really surprising that without asking any body else or telling any thing to any one of the neighbours he just goes back to his house to sleep, when at about 9‑tx1 p.m., P.W.3 Muhammad Ayub by chance comes to him and on his own asking narrates the story of abduction to him. It is also noticeable that Mst. Kamul, the alleged abductee does not make any hue and cry although the neighbouring houses are at a call distance, besides her own house. Even if she did not do so due to fear she could have refused to sit on the traila and said so to the driver and the other persons on the traila. On Pacca road when she passed through a mosque she could have gathered the people there. It was `Zuhar' prayer time. It is also noticeable that the Police even did not of go to inspect the place, i.e. a lonely room where she is alleged to have been confined, situate in agricultural land at a distance of about one and a half miles before Ranipur, notwithstanding the fact that the appellants had challenged the existence of the said room in cross‑examination to her. It is also noticeable that the Police has neither recovered the pistol or hatchet nor appears to have made any effort for recovering the same from s the possession of the appellants or any one else. All these factors taken A.' together lead to conclusion that there was no abduction or confinement as alleged it.

11. As regards the alleged recovery, Mst. Kamul herself deposed that she and Zahoor were coming back in a bus to the village and on their getting down from the bus mobile police apprehended them. At that time no, one is stated by her to be present except the police. Her own statement thus belies the story of her recovery in presence of Mashirs and' her husband.

12. Learned counsel for the appellants further submits that the witnesses are closely related to the complainant party. The litigation regarding land is pending. Previously, there have been proceedings under section 107, Cr.P.C., as borne out from the documentary evidence brought on record in defence. The learned trial Judge does not appear to have discussed this aspect of the matter and giving weight to the defence evidence including documentary evidence brought on record by the appellants. He has also not given any reason for disbelieving the evidence adduced on behalf of the appellants.

13. For the aforesaid reasons, we are of the view that the entire case seems to be cooked up. The appeal is accepted and the judgment impugned before us is set aside. The appellants be set at liberty forthwith if not required in any other case.

14. Before parting with the case, it maybe observed that it will be open to the appellants to rile a case against the complainant for malacious prosecution, if so advised.

N.H.Q./086/FSC Appeal accepted.