ALI RAZA SHAH Versus STATE

1. SHAFIUR RAHMAN, J.‑‑‑ This appeal by a convict is as a matter of right under clause (a), clause 2(A) Article 203‑F of the Constitution. The trial Court convicted him under section 10(3) and section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). He was sentenced to 7 years' R. I. and 10 stripes for the former and 7 years' R. I., 10 stripes and a fine of Rs. 5,000 for the latter. On his appeal, a notice was issued to him by the Federal Shariat Court for enhancement of the sentence. The conviction and sentence under section 10(3) of the Ordinance was set aside and he was acquitted of that charge. His conviction under section 11 was maintained and the sentence, therefore was enhanced to life imprisonment, 30 stripes and a fine of Rs. 5,000 or in default one year's R. I.

2. The prosecution case against the appellant was that he was a driver of a Bus which used to ply between Lahore and Kasur. Waheed his co‑accused was a conductor on that Bus. On the 9th of May, 1981, Mst. Tasleem P. W. 3 aged 16 years along with her sister Mst. Maryam P. W. 4 aged 10 years boarded a Bus different from that of the appellant for going to Kasur to meet their uncle. The Bus on which they were traveling left without them at Kahna when they got down to take their meals. They caught the next Bus going to Kasur and that happened to be the one driven by the appellant. It was alleged that Waheed, the conductor teased them on way to Kasur; did not permit them to get down from the Bus at Kasur and coerced them to remain in the Bus while coming back to Lahore from Kasur. It was at about 11 p. m. or so that the Bus reached Badami Bagh, Lahore and when the passengers left, in the presence of Mst. Maryam, after obtaining a matress, Waheed committed sexual intercourse with her in the same Bus and thereafter went to sleep. The appellant is also said to have committed sexual intercourse with her on the same night in the same Bus and thereafter he took the two sisters to the house of his sister in Gulberg. There too, he committed sexual intercourse with Mst Tasleem. From there, he brought Mst. Tasleem to his house in Pattoki dropping Mst. Maryam on way near her residential quarter. It was from there that on the 12th of May, 1981, the appellant got recovered Mst. Tasleem P. W.

3. She was examined by Dr. Razia Begum P. W. 1 who found no mark of violence on her person but noted that sexual intercourse had been committed with her. The vaginal swabs were found to be stained with semen.

3. The appellant pleaded that he was not involved in the occurrence and that he had been implicated falsely on account of enmity. The police, according to him, wanted to show quick results in the case as it had been got registered at the behest of Martial Law Authorities. He produced two witnesses in defence who deposed about his good character.

4. The learned trial Court held that the identity of the co‑accused of the appellant was not established beyond reasonable doubt and acquitted him. The case against the appellant under section 10(3) and section 11 of the Ordinance was held proved on the statement of the complainant Mst. Tasleem P. W. 3, her sister Mst. Maryam P. W. 4, her recovery from the house of the appellant and the medical examination conducted by Dr. Razia Begum.

5. The Federal Shariat Court came to the conclusion that in the statements recorded immediately after the recovery of Mst. Tasleem she had not charged the appellant of having committed Zina with her. On that account the charge under section 10(3) was held not proved. As regards the charge under section 11, it was held that ostensibly the appellant had given the impression that he was rescuing them but in fact after dropping Mst. Maryam, he had taken Mst. Tasleem to his house and kept here. The conclusion drawn was that the intention to compel a girl to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse can be presumed "when a stranger takes away a young girl to such a distance and gets rid of her minor sister in the way".

6. The learned counsel for the appellant has challenged the finding of the two Courts on all points. According to him, the identity of the appellant was not fully established; recovery had not taken place; the story was all false and had been advanced only to show results to the Martial Law Authorities to whom a complaint had been made about what had happened to fist. Tasleem and Mst. Maryam.

7. The statement of Mst. Tasleem under section 164, Cr. P. C. was recorded on the 19th of May, 1981. It was after seven days of her recovery. During this period, she bad remained with her father and at times associated with the investigation of the case. That statement of hers contains no allegation that the appellant by his conduct or association with her either committed an offence or gave the impression of having the intention of committing any such act. He took her first to his sister's house and then to his own house where his wife and a child were present. He returned from there after depositing her there. Till the appellant took charge of her, she had been cornered and coerced by the conductor Waheed who according to her statement, was responsible for all the evil deeds. At the trial, she was questioned about that statement and she made the following comment:‑

8. "As far I remember I have not mentioned in my statement before the Magistrate that Ali Raza Shah committed Zina‑bil‑jabr with me at the Bus stand then at the house of his sister and then at his house at Pattoki."

9. She also admitted that:‑

10. "The sister of the accused Ali Raza and her children were present at the house when this accused‑took me tar the said place. The wife of Ali Raza accused, and a small girl were present at the house of this accused at Pattoki when he took me to the said house."

11. The conduct of the appellant as is assigned to him in the first statement recorded under section 164, Cr. P. C. whose accuracy is admitted by the Complainant herself, leaves that necessary ingredient of section 11 of the Ordinance un-established so as not to make the appellant criminally liable for his act which could have been one of rescuing her from the clutches of others and escorting her to her relatives in a more responsible and befitting manner. There is that element of reasonable doubt present in the prosecution case of which the appellant was entitled to get the benefit.

12. We find that the conviction of the appellant cannot be maintained. The appeal is accepted. His conviction and sentence is set aside. He shall be released forthwith if his detention is not required in any other matter.

13. M. Z. M. Appeal accepted.