ABID HUSSAIN Versus STATE , Raja Abdul Ghafoor, Advocate instructed by M. Yousaf, Advocate-on-Record
This criminal appeal arises from a conviction under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, where the appellant was sentenced to four years' rigorous imprisonment for allegedly abducting a woman for illicit intercourse. The core legal question was whether the prosecution had produced sufficient evidence to establish that the woman was detained or subjected to sexual intercourse against her will, or if the parties had entered into a valid marriage as sui juris adults. The Supreme Court of Pakistan held that the prosecution failed to provide any evidence of abduction, detention, or non-consensual sexual activity. The Court noted that the mere fact of the woman being seen in the company of the appellant did not constitute an offence, particularly given her background in a free society. Consequently, the Court set aside the conviction and sentence, ruling that the appellant and the woman, being sui juris, had contracted a valid marriage of their own free will. The principle laid down is that in the absence of evidence proving the essential ingredients of an offence, a conviction cannot be sustained.
- Does the mere act of being seen in the company of another person constitute an offence under the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Can a conviction be sustained when the prosecution fails to provide evidence of detention or non-consensual sexual intercourse?
- Is a marriage contracted by sui juris adults of their own free will a valid defense against charges of abduction under the Offence of Zina (Enforcement of Hudood) Ordinance 1979?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 340, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
1. RAJA AFRASIAB KHAN, J .‑‑‑On 21st of December, 1989 at 11‑20 a. m, a case under sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the Ordinance) was registered on the statement of Munir Hussain against Qerjasab Khan, Mst. Riaz Bibi, Ghulam Muhammad Arabi, Mst. Naseem Akhtar, Mst. Inayat Bibi and Abid Hussain with Police Station Kallar Syeddan, District Rawalpindi. The complainant had been living and earning his livelihood in England for the last about 25 years. He had two sons and three daughters who also lived with him. About 1‑1/2 years ago, his wife Mst. Razia Bibi and daughter Nahida Bibi (17‑1/2) came to Pakistan. Nahida Bibi was betrothed with one Altaf Hussain and marriage ceremony was still to be solemnized. She, however, established illicit liaison with Abid Hussain who was distantly related to her. On 18th of December, 1989, Mst. Inayat Bibi came to the house of complainant to see the family. She also met and talked with Mst. Nahida Bibi. On 19th of December, 1989 at 9‑00 p.m., the complainant and his relatives discussed about the marriage of Mst. Nahida Bibi in her presence. She, all of a sudden, left the house and did not return. The complainant could not find the girl despite his best efforts. Qurban and Amir Ali disclosed that some time before, they saw Nahida Bibi while going with Abid Hussain. The appellants were found to be guilty by the Investigating Officer Prosecution produced Munir Hussain, P.W.1, Ameer Ali, P.W.2, Qurban Hussain, P.W.3, Muhammad Maroof, P.W.4, Muhammad Ayub, A.S.I., P.W.5, Fazal Karim, S.I. P.W.6, Niaz Ahmad, P.W.7 and Amanat Ali P.W. 8 in support of its case. The appellant, in his statement under section 340, Cr.P.C. denied the allegations levelled against him and pleaded his innocence. He also produced Muhammad Sarwar, D.W. 1 and Raja Muhammad Suleman, D.W.2 in support of his plea. The relevant part of his statement is as follows:‑‑----
2. "B. Nahida Bibi is my wife. My Nikah was performed in the vicinity of Allama Iqbal Colony Tench Bhata, Rawalpindi, vide Nikahnama Exh. DC. After performance of Nikah, she lived with me for one month. Then I sent her to U.K. on 22‑1‑1990 vide Flight No.BA‑118. After my wife left for U.K. she only contacted me through telephone to my Regiment Officer, in my Unit at Karachi. Thereafter, I have got no contact with her. When I received the telephone, I had conversation with her mother. Mst. Nahida Bibi entered into contract of marriage with me after she got her statement recorded before a Magistrate.
3. On 7‑8‑1991, a learned Additional Sessions Judge, Rawalpindi convicted and sentenced the accused under section 16 of the Ordinance to four years' R.I. plus fine of Rs.10,000 or in default, to undergo R.I. for six months alongwith 15 lashes. Benefit of section 382‑B, Cr. P.C. was extended to him Qerjasab, Mst. Riaz Bibi, Ghulam Muhammad Arabi, Mst. Inayat Bibi and Mst Nasim Akhtar were acquitted by giving them benefit of doubt. On 25‑2‑1992, Federal Shariat Court dismissed the appeal of the appellant while the learned counsel, in Revision No.43/I'91 having been filed by the complainant did not press it and as such it was dismissed as withdrawn vide the same judgment Leave to appeal was granted by this Court on 25th August, 1992 with the following order:‑‑
4. We have heard the learned counsel for the parties and read the record with their assistance. Learned counsel for the appellant states that no offence was committed because the parties, being sui juris, had contracted marriage with each other with their free will. In reply, learned counsel for the complainant has half‑heartedly submitted that prosecution has succeeded to establish its case on the basis of evidence. We do not agree with the learned counsel inasmuch as, we have read the testimony of Munir Hussain and we do not find anything in it against the appellant to justify his conviction and sentence. It was said in the evidence that Mst. Nahida Bibi was seen in the company of Abid Hussain. It was nowhere said that Nahida Bibi left her house and acted under the influence of Abid Hussain or she was detained by him or she was subjected to sexual intercourse. It is in the evidence that Mst. Nahida Bibi was brought up in free English Society where to walk with strangers was not considered to be immoral or objectionable. The only allegation',, was that she was seen in the company of Abid Hussain by the P.Ws., this fact does not constitute the commission of any offence on the face of record. No other evidence was produced by the prosecution in support of allegations. levelled against the appellant. In his statement under sections 340 and 342, Cr.P.C. the plea of appellant was that Nahida Bibi had entered into a marriage bond with him with her own free consent. The parties being sui juris had married each other and as such, no offence was committed by them. This being so, there is not an iota of evidence to connect the appellant with the commission of crime. He is accordingly, acquitted of the charge by setting aside his conviction and sentence. The appeal succeeds and is allowed. The bail bonds are discharged.
5. N.H.Q./A‑1324/S Appeal accepted