AMIR ALI AND 3 OTHERS Versus THE STATE Khan Zia-ud-Din Khan , S.D. Qureshi

MUFTAKHIRUDDIN, ACTG. C.J. --This is an appeal against the judgment of the learned Additional Sessions Judge Sheikupura, Camp Ferozewala passed on 24-4-1988 whereby the appellants Amir Ali and Bashir Ahmad both sons of Kaley Khan residents of village Galo, Muhammad Anwar son of Wawhan, resident of Nooraywala and Inayat Ali son of Gudoor resident of Khanowal police station Sharqpur, Tehsil Ferozewala District Sheikhupura have been convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and each sentenced to four years R.I. with thirty stripes. The accused are also fined Rs.2,000 or in default of payment of fine to further undergo R.I for six months each.

2. One Akbar son of Murad caste Oad resident of Mauza Nooraywala police station Sharqpur District Sheikhupura made a statement before Muhammad Siddique ASI of police station Sharaqpur on 29-12-1985 and stated that he is an agriculturist. Sardar Muhammad alias Dara resident of village Galo was his relative. On 24-12-1985 the said Sardar alongwith his brothers. Amir Ali and Bashir and mother Mst. Daulan wife of Kalu came to his house to see him and his family members. Since it was raining on that day, they could not go back to their home and slept for the night in his house. Muhammad Rafique son of Haji Muhammad Ali caste Arain resident of Baghirwala also had came to his house and slept for the night there. Muhammad Rafique was also holding his gun with him. Due to shortage of bedding, Mst. Daulan slept with his daughter. Mst. Haliman on one cot. On the next morning, the complainant found Sardar alias Dara, Bashir and Amir Ali and their mother Mst. Daulan alongwith Mst. Haliman missing from the house. On checking the lincensed gun of Muhammad Rafique, Rs.10,000, one pair of golden bangles and nine amulets worth Rs.4.000 were not found in the house. A thorough search was made by the complainant in the neighbouring villages but all in vain. The same day in the evening Allah Bakhsh and Muhammad Boota P.Ws told him that they had seen Mst. Daulan alongwith her sons taking away Mst. Haliman at the bus stop of Buraj Attari. They called for them but they went away in the bus. The complainant suspected that Mst. Haliman had been abducted by them by the purpose of zina. This statement was got thumb-marked by the complainant Akbar and sent to the police station by Muhammad Siddique where Karamat Ali H.C recorded the formal F.I.R. It is alleged that Mst. Haliman was found with Sardar Muhammad and Mst. Daulan at bus stand Sheikhupura in the presence of Sewna P.W.7 the real paternal-uncle. Mst. Haliman was got examined under section 164, Cr.P.C. on 13-1-1985 and the next day was examined by lady Doctor at DHQ Hospital Sheikhupura. The vaginal swabs were obtained from Mst. Haliman for the detection of semen by the Chemical Examiner. The Medical Officer deferred her medical opinion and expressed that it would depend on the report of the Chemical Examiner. The report of the Chemical Examiner Exh.P.F. was later received and it was certified that the swabs were stained with semen. The case was investigated by Muhammad Siddique who after recording the statement of the complainant, inspected the site, prepared the site plan EXh.P.E, and recorded the statement of the witnesses. On 17-1-1986 the gun was recovered from the village Galo at the instance of Sardar Muhammad accused. The accused when arrested were got medically examined and the challan was put up in Court against all the four accused; appellants and Sardar Muhammad and Mst. Daulan. Sardar Muhammad accused was later declared absconder and Mst. Daulan died during the trial. All the accused persons were charged under section 11 of the said Ordinance read with section 34, P.P.C. and also under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

3. On the denial of the charges the prosecution examined nine witnesses. They are P.W.1 (Allah Bakhsh) a relative of the complainant and waj-takker witness, P.W.2 (Muhammad Yaqoob F.C.) who had taken the parcel to the Chemical Examiner, P.W.3 (Karamat Ali H.C) who deposed that he had recorded the formal F.I.R. and had received sealed parcel and an envelope which were later given to Muhammad Yaqoob for onward transmission to the Office of the Chemical Examiner. P. W.4 (Mst. Halima Bibi the prosecutrix), P.W.5 (Akbar the complainant), P.W.6 (Muhammad Rafique) testified about his stay of the house of the complainant and the theft of his gun, P.W.7 (Swena) the witness of recovery of Mst. Halima Bibi, P.W.8(Maqbool Hussain) a Record Keeper from the District Headquarter Hospital Sheikhupura deposed that the Medico Legal Report Exh.P.D. in respect of Mst. Halima Bibi was prepared by lady Dr. Zahida Parveen Woman Medical Officer DHQ Hospital Sheikhupura and the witness identified the signature of the lady doctor thereon and P.W.9 (Muhammad Siddique, A.S.I.) , who has stated above had recorded the statement Exh.P.A. made before him by Akbar, had arrested two accused Sardar Muhammad and Mst. Daulan at bus-stand Sheikhupura and also recovered Mst. Halima Bibi. The witness further deposed that he had got recorded the statement under section 164 Cr.P.C. made by Mst. Halima Bibi. The recovery of gun was effected by him vide recovery memo Exh.P.C. All the accused were arrested by him and were got medically examined.

4. All the four accused /appellants denied their involvement in the commission of the offence and stated that they have been implicated due to their relationship with absconding accused Sardar Muhammad. The trial Court disbelieved the prosecution case regarding abduction and theft of ornaments and cash but believed Mst. Halima Bibi qua the commission of Zina by four accused with her. It is significant that though it was alleged by Mst. Halima Bibi that she was abducted and all the male accused had committed Zina with her against her will yet the learned trial Court convicted the appellants under section 10(2) of the said Ordinance and sentenced them as mentioned above.

5. Khan Zia-ud-Din Khan, Advocate appeared for the appellants and Mr. Shujauddin Qureshi, Advocate represented the State.

We have gone through the record and find that the trial Court has given weight to the statement of Mst. Halima qua the offence of Zina and medical evidence and the fact that Mst. Halima was an unmarried girl. The trial Court did not believe Mst. Halima Bibi that she was taken to different places during one month or so and she did not make any complaint. At the time of the alleged recovery from bus-stand Sheikhupura admittedly only Sardar Muhammad and Mst. Daulan were found. The places where the prosecutrix was taken and allegedly raped were not cared to be inspected by the Investigating Officer to verify the statement of Mst. Halima Bibi. The alleged abductee claims to be unmarried but the medical evidence is very much damaging. It has been observed by the lady doctor in Medico Legal Report (Exh.P.D.) that hymen of the examinee was absent. Multiple old healed, marginal tears were present. Vagina admitted two fingers easily and vaginal examination was not painful. The learned counsel appearing for the appellants relied on a judgment of this Court reported in PLD 1988 FSC 3 (Mahboob Hussain and another v. The State).

6. After careful perusal of the record we are of the view that Mst. Halima Bibi is not worthy of reliance on the point of Zina. She has already been discredited alongwith her father Akbar. The observations of the learned trial Court that there is nothing on record to shoes' that Mst. Halima Bibi had been abducted alone by Sardar wit Muhammad accused or that she had eloped with him with a view to marry him. Mst. Halima Bibi was not examined on the day she was allegedly recovered. The investigating officer was not sure that Mst. Halima Bibi would support the prosecution case and therefore, she was produced before a Magistrate for examination but strangely enough the Magistrate was not examined and statement that was recorded was not formally proved at the trial. There was no charge under section 10(2) of the said Ordinance against the accused persons. The conviction of the appellants therefore, is unwarranted in law.

7. For the above reasons we do not uphold the conviction of the appellants under section 10(2) of the said Ordinance and accept the appeal, the conviction and sentences passed against all the appellants are set aside and they are acquitted of the charges. They are on bail. Their bail bonds stand discharged.

M.Y.H./425/FSC ???????????????????????????????????????????????????????????????????????????????? Appeal accepted.