SAFDAR ALI ALIAS SHAFI AND 2 OTHERS Versus THE STATE
MUFTAKHIRUDDIN, J. --This is an appeal against the judgment dated 19-1-1988 passed by the learned Sessions Judge, Nawab Shah whereby the appellants (i) Safdar Ali alias Shafi Muhammad son of Abdullah Sahito, resident of village Mirzapur, Taluka Kandiaro, District Nawabshah, (ii) Mir Khan son of Piral Sahito, resident of Hyderabad and (iii) Sikandar Ali son of Abdullah Sahito, resident of village Mirzapur, Taluka Kandiaro, District Nawabshah (confined in District Jail Nawabshah) have been found guilty of offences punishable under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to imprisonment of life and whipping numbering 30 stripes in addition to a fine of Rs.5,000 each or in default to suffer R.I. for six months under section 11 of the said Ordinance and 10 years' R.I. and whipping numbering 30 stripes under section 10(3) of the said Ordinance. The sentences are to run concurrently.
2. The occurrence is alleged to have taken place on 27-5-1984 at 8-30 a.m. at the house of Mst. Ghulam Fatima wife of Haji Ubedullah Memon in Naushero Feroz in the District Nawabshah and the F.I.R. in that behalf was lodged at 6-30 p.m. on 11-6-1984 at Police Station Naushero Feroz by Mst. Ghulam Fatima (P.W.2) and it was alleged that her daughter Mst. Nasim alias Kaki aged 14 years was residing with her in Naushero Feroz town. Her sister (complainant's) is married in Sahito Tribe, as a result of which their relatives Safdar Ali alias Shafi Muhammad and others used to come in her house. About two months back, Safdar Ali, Sikandar, their father and mother and sister came together and demanded the hand of her daughter (Nasim) in marriage from her. They were told that she may be allowed to think over. On 26-5-1984 Safdar Ali alias Shafi Muhammad, Sikandar Sahito, Abdullah Sahito, Imam Zadi wife of Abdullah Sahito, Mst. Gulistan alias Gullan daughter of Abdullah Sahito, Mir Khan came to her as guest. They stayed for the night at her house. In the morning Mst. Sakina, another daughter of the complainant went away on her duty. Other girls went to school and her son Aslam had gone to Dadu at 8-00 a.m. She (complainant) went to the neighbours for some work leaving Mst. Nasim and the guest in the house. After half of an hour, as soon as she entered her house, she found guests and daughter Nasim missing from the house and household articles were lying scattered. Articles (gold, cloth and cash) the details whereof is given in the report were found missing. Enquiries were made about them but no clue was found. Thereafter the facts were narrated to Khalifo Bashir Memon who advised her to go to their village for making enquiry. Then she went to Mirzapur Taluka Kandiaro after making enquiry regarding the accused persons, where besides her daughter Mst. Nasim alias Kaki and Safdar Ali alias Shafi Muhammad, others were present. She (complainant) enquired from them about her daughter and articles but they replied that they did not know and that her daughter would have gone with Safdar Ali. Therefore she continued making enquiries and made complaints to the higher authorities. Now she had come to lodge report, that all the aforesaid persons having conspired amongst themselves stayed for night at her house, in her absence in the morning abducted away her daughter Mst. Nasim and taken away the articles. She further stated in the report that she (complainant) would be able to identify her articles when shown to her.
3. The F.I.R. was formally registered by Muhammad Abbas S.I. at the police station who undertook the investigation. It is said that on 20-6-1984 Mst. Nasim (the prosecutrix P.W.1) was secured from Halani Bus Stand. The Mashirnama prepared in that behalf Exh.20 was attested by Din Muhammad (P.W.5) and another person (nor examined). Mst. Nasim was referred to the Medical Officer and on 24-6-1984 she was produced before a Magistrate (not examined) for statement and on 25-6-1984 accused Safdar Ali was arrested. The other accused persons had secured bail. The challan was put up in Court after the completion of the investigation.
The accused persons were charged with offences under sections 11 and 10(3) of the said Ordinance and on the denial of the charges by the accused the prosecution examined seven witnesses. They are P.W.1 (Mst. Nasim the prosecutrix), P.W.2 Ghulam Fatima (the mother of the prosecutrix and the complainant), P.W. 3 Sikandar (a Mashir of Wardat), P.W.4 Muhammad Abbas A.S.I. (the Investigating Officer who had secured the alleged abductee). P.W.5 Din Muhammad (an attesting witness of the recovery of Mst. Nasim), P.W.6 Ghulam Nabi F.C. who had attempted to secure the attendance of Muhammad Bachal and P.W.7 Dr. Mumtaz Ali, who identified the signature of lady doctor Mst. Sakina who had examined Mst. Nasim). The witness proved the M.L.R. prepared by Dr. Sakina. The accused in their statements recorded under section 342, Cr.P.C. denied the accusations and Safdar Ali accused put his case in answer to the question No.5 in these words:
"Mst. Nasim has married with me. Such Nikahnama and affidavit of Mst. Nasim and publication of her statement in daily Ibrat have already been produced by me. Her mother wanted Rs.10,000 from me which I did not pay. Hence this case has been filed."
Mir Khan stated that he is the uncle of the accused Safdar and Sikander the elder brother of Safdar and both have been falsely involved.
The accused relied on the affidavit Exh.11 sworn on 30-5-1984 and Nikahnama and a Press cutting of the newspaper Aftab , dated 12-6-1984. The trial Court has found the accused persons guilty of the offences and sentenced them as mentioned above.
4. Mr. Muhammad Hayat Junejo, Advocate appeared for the appellants and Mr. Zaheer Qureshi, Advocate represented the State.
The learned counsel for the appellants has assailed the order of conviction and has strenuously urged that the entire prosecution story is cooked up and the F.I.R is delayed. About the recovery of the alleged abductee there are two versions. One by the Police and the other by Mst. Naseem. The conduct of Mst. Naseem does not inspire confidence.
We have gone through the entire evidence on record. The allegation of theft has not been believed by the Investigating Officer and that allegation has not been paid any attention to by the trial Court also as no charge was framed.
The maker of the F.I.R. (Mst. Ghulam Fatima) has not stated the truth and appears to have concealed facts. It is alleged by her at the trial that she had refused the hand of Mst. Naseem but in F.I.R a different version was given. It does not stand to reason, that though there was no inclination to accept the proposal yet the accused party was allowed to put up as guest and the young girl was left alone in the house. Though the theft was detected and the household goods were found scattered yet no report was made to the police, no neighbour was available to corroborate the story.
P.W.5 Din Muhammad an attesting witness of the recovery of abductee from Halani Bus Stop did not support the version. The witness in spite thereof was not declared hostile. Mst. Naseem hash her own story about her recovery. She deposed that she was recovered from the house of a Syed at Halani. The solitary statement of Mst. Naseem (P.W.1) does not ring true. It is stated by her that the, sister of the accused had given her "Sharbat" and she became unconscious and was then taken to the village and there regained consciousness. It is not believable that an unconscious person was being taken in the day time yet none had witnessed the same.
Safdar and Sikandar are real brothers while Mir Khan is their uncle and sufficiently advanced in age. Safdar was to marry Mst. Naseem yet he tolerated his wife to be molested by others is simply not believable. It cannot be imagined in the society to which the accused persons belong.
Mst. Nasim was not in Burqa when she was recovered as deposed by the Investigating Officer and is an educated girl. The news cutting brought on record and the affidavit sworn by her that she wanted to marry Safdar Ali, though denied at the trial (when she was under the influence of her mother) appears to be true. The signatures on the affidavit and the Nikahnama have been admitted by her. She was a free agent and could have refused to put her signature.
5. For the above reasons we entertain doubt about the prosecution case, the defence version is plausible. We consider that it would not be safe to maintain the conviction. The appeal is accordingly allowed, the convictions and sentences passed against the appellants, namely Safdar Ali alias Shafi Muhammad son of Abdullah Sahito, Mir Khan son of Piral Sahito and Sikander Ali son of Abdullah Sahito, are set aside and they are acquitted of the charges. They shall be released forthwith if not required in any other case.
These are the reasons for our short order announced at the conclusion of the arguments.
M.Y.H./428/FSC Appeal allowed.