ANWAR MASIH Versus THE STATE Inamullah Khan , Saleem Shad
KAMAL MUSTAFA BOKHARI, J. --The Additional Sessions Judge, Narowal on 14-2-1987, convicted Anwar Masih son of Madhu Masih, under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to undergo rigorous imprisonment for eight years and whipping numbering thirty stripes for abduction and Zina-bil-Jabr with Mst. Nasreen. He was given benefit under section 382-B, Cr.P.C. The convict filed appeal against his conviction and sentences which shall be disposed of by this judgment.
2. Briefly, the prosecution case in the first information report was that parents of Mst. Nasreen, aged 16/17 years, had engaged her with Ishaq but refused to give her in marriage to him because later on they had promised to marry her with the appellant after getting some money from him. Mst. Nasreen refused to marry the appellant and subsequently her parents threatened her with dire consequences for her refusal. Mst. Nasreen then married Ishaq at Alipur Sayaddan after both embraced Islam at the hands of Pir Sahib who performed her Nikah with Ishaq which happened about nine months before the FIR. Her Nikahnama with Ishaq was stated to be with father of Ishaq, Piyara Masih. She stayed with Ishaq for about two months but her parents got her recovered through police and took her to their house because an FIR had been registered against her and Ishaq. Her parents told her that they will send her to Ishaq, after some time and accordingly after ten days her father took her and left her at the house of her-in-laws where she stayed for about two months. Thereafter, her father again brought her home but instead took her to the house of appellant and himself left leaving her there. She had not married the appellant. She stayed with the appellant for about two months who committed Zina-bil-Jabr with her without her consent.
3. In execution of a warrant under section 100, Cr.P.C. issued by the Magistrate, Narowal, police recovered her, on 21-9-1983, and produced her before the Assistant Commissioner, Narowal who recorded her above statement on 22-9-1983 and sent a copy of the same to the Police Station, Narowal, District Sialkot where formal FIR was registered on it at 2 p.m. on 22-9-1983.
4. It was Altaf Hussain, A.S.I., P.W. who had recovered Mst. Nasreen on 21-9-1983 from village Nawadey and had produced her before the Assistant Commissioner, Narowal, on 22-9-1983 where her statement under section 164, Cr.P.C. was recorded. Altaf Hussain also got her medically examined after registration of first information report.
5. Sarfraz, P.W., Sub-Inspector, at Police Post Narowal, conducted necessary investigation. He conducted search of the appellant who was. not available due to which he proceeded against the appellant under section 87/88, Cr.P.C. and got him declared proclaimed offender.
6. Muhammad Tofeeq Khan, P.W., Sub-Inspector, who was posted at Police Station, Narowal, arrested the appellant, on 4-1-1986, in a case, under section 13 of the Arms Ordinance. The appellant was deemed to have been arrested in the present case. On 5-1-1986, he sent the appellant to judicial lock-up. In cross-examination Muhammad Tofeeq Khan stated that the appellant was arrested from Jassar By-pass, Narowal at 3-30 p.m. There existed shops and octroi post near the place from where appellant was arrested and Muhammad Azam from public had witnessed the recovery of Khanjar from the appellant. After completion of investigation the appellant was challaned in Court by Muhammad Amir, Sub-Inspector (not examined) in Court.
7. Lady Dr. Salma Parveen (P.W. 4), medically examined Mst. Nasreen on 22-9-1983. She observed that no mark of violence was present on the private and other parts of her body. Her pubic hair were black and thick. Labia majora and minora were well-developed and were intact with each other. Her hymen was absent she had old healed tears and it was pink in colour. Her vagina admitted two fingers easily and there was no tenderness. Her internal examination was showing her pregnancy of about three months. She took two vaginal swabs. In the opinion of lady doctor, Mst. Nasreen was a married girl who was habitual to intercourse and had pregnancy of three months. After seeing positive report of Chemical Examiner lady doctor also gave opinion that she was subjected to sexual intercourse.
8. At the trial prosecution examined seven witnesses in all. Muhammad Tofeeq Khan (P.W. 1), ASI, had arrested the appellant. Altaf Hussain (P.W. 2), ASI had recovered Mst. Nasreen from village Nawadey. Nasir Ahmad (P.W. 3), Foot Constable, took parcel to the Office of Chemical Examiner. Lady Dr. Salma Parveen (P.W. 4), medically examined Mst. Nasreen after she was recovered by the police. Muhammad Bashir (P.W.5), Moharrir Head Constable, formally registered the first information report at the Police Station. Sarfraz Khan (P.W. 7) Sub-Inspector, investigated the case. Mst. Nasreen (P.W. 6) supported the prosecution and narrated the facts stated by her before the Magistrate, Narowal, after her recovery on the basis of which formal F.I.R. was registered.
9. The appellant did not plead guilty to the charge and denied the allegation against him. He appeared as his own witness and made himself available for cross-examination. In his statements under sections 342 and 340(2), Cr.P.C. he denied that Mst. Nasreen was brought to his house by her father and further denied to have committed Zina-bil-Jabr with her. According to the appellant, Nawab Masih, father of Mst. Nasreen wanted to marry her with the appellant but Mst. Nasreen herself did not desire so and in fact she was kidnapped by Ishaq Masih and others about which mother of Mst. Nasreen had got registered a case against them. It was, also stated that Mst. Nasreen in her statement under section 164, Cr.P.C. recorded at Faisalabad named Ishaq Masih as principal accused in spite of which Mst. Nasreen, P.W. eloped with Ishaq Masih. Since parents of Mst. Nasreen did not want her to remain with Ishaq and Mst. Nasreen and Ishaq became inimical towards the appellant they got him falsely involved in this case in order to save their own skin.
10. The learned counsel for the appellant took us through the evidence in this case. It was urged before us that the solitary uncorroborated statement of Mst. Nasreen could not form basis for conviction of appellant and that her recovery from the appellant was not proved on record.
11. The prosecution evidence comprised of ocular evidence in the testimony of Mst. Nasreen alone. Her testimony is discrepant on material points and she had made improvements on her statement, Ex.PC/l, recorded by the Magistrate 1st Class, Narowal immediately after her recovery from the appellant. She also did not specifically depose that the police recovered her from the appellant. According to her she was taken to the house of appellant in village Dhulam. Altaf Hussain, P.W., A.S.I., is the only witness of her recovery who deposed that Mst. Nasreen was recovered by him from village Nawadey in execution of the warrants. There is no evidence for the place of her recovery. It is not disputed that appellant was not present at the time she was recovered. According to Muhammad Tofeeq Khan, P.W., ASI the appellant was arrested from Jassar by-pass under Arms Ordinance for possession of Khanjar, on 4-1-1986 and was deemed to have been arrested in this case. The medical evidence disclosed that Mst. Nasreen was habitual to intercourse and was pregnant for about three months at the time of her recovery. The prosecution did not examine any witness to corroborate her testimony about her detention and recovery from the appellant. There is no independent circumstance corroborating her testimony to the effect that she was left by her father at the house of the appellant where the appellant detained her and subjected her to Zina-bil-Jabar. We find that the prosecution failed to establish its case against the appellant who is entitled to the benefit of doubt in the circumstance of the present case.
12. For the above reasons, the appeal is accepted, conviction and sentences of the appellant are set aside. His release from prison had earlier been directed by our short order.
S.A./415/F.S.C. ?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.