MANZOOR AHMAD Versus THE STATE

This appeal is directed against judgment dated 27-8-2002, by Additional Sessions Judge, Faisalabad, whereby trial Judge, convicted the appellant under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance and sentenced him to undergo R.I. for five years, plus to pay a fine of Rs.5,000 in default whereof to undergo S.I. for six months.

He was also convicted vide the same judgment under section 16 of the said Ordinance and sentenced to undergo R.I. for five years, plus to pay a fine of Rs.5,000 in default whereof to undergo S.I. for six months.

Mst. Tanzeela Bibi, tried alongwith the appellant, was acquitted vide the same judgment.

2. Occurrence in this case, had taken place on 7-11-2000 at 4/5-00 p.m., in the fields, in the area of Chak No.233/RB, Kothi Jhanda Singh Wali, at a distance of 20 kilometres from Police Station Saddar, Faisalabad.

F.I.R. Exh.P.E./1 was recorded at the police station, by Ghulam Shabbir Khan, A.S.-C. (P.W.7), on 13-11-2000, at 6-30 p.m. on receipt of application Exh.P.E. produced by Muhammad Siddique (P.W.8), on the same day before Ijaz Ahmad, S.-I. (P.W.10) at 5-30 p.m. at Police Post Rashidabad.

According to F.I.R. complainant was a tailor. His sister Mst. Tanzeela Bibi alias Rani, aged 14/15 years, alongwith his wife Mst. Zahida Parveen, had gone to the fields for easing themselves at 4/5 p.m. on 7-11-2000. Manzoor (appellant), Muhammad Javed, Abdul Ghani and Nasir Rasheed, alongwith two other unknown persons, came there, armed with fire-arms. They abducted Mst. Tanzeela Bibi at -gun point, threatening that if anybody intervenes, he will be killed.

Complainant stated that he had been making efforts for return of his sister but the accused refused point blank and so he had come to lodge the report. He prayed for recovery of his sister, saying, that he was a poor person.

3. Ijaz Ahmad, S.-I., after dispatching application Exh.P.E., to the police station for registration of case, took up, investigation. He recorded statements of three P.Ws. and arrested Manzoor and Mst. Tanzeela on 14-I1-2000 and got them medically examined, where-after he got them lodged in judicial lock-up. During further investigation, he came to the conclusion that the accused other than Manzoor, named in the F.I.R. were innocent, resultantly, he got the challan submitted to Court, in which Mst. Tanzeela Bibi was named as an accused alongwith Manzoor.

4. Statements of 10 P.Ws. were recorded at tae trial. Muhammad Siddique, complainant appeared as P.W.8. After repeating the facts, which he had got recorded in the F.I.R., he stated that 8/10 days, after the occurrence police had recovered Mst. Tanzeela, from the house of sister of Manzoor accused in village Kokian Wala. He claimed that he knew all the persons nominated in the F.I.R., as they had set up an office of property dealer. During cross-examination, he stated that he can identify the accused named in the. F.I.R., excepting the two, whose names, he had not given in the F.I.R. While answering a question, he asserted that Mst. Tanzeela had been abducted by the said persons forcibly. He stated that there was no case of this nature against Mst. Tanzeela prior to this case.

5. Shabbir Ahmad, P.W.9, corroborated, the statement, made by Muhammad Siddique, P.W.8. During cross-examination, also by and large, .he gave the answers of questions as had been done by P.W.8.

6. Ijaz Ahmad, S.-I., who had investigated .the case, arrested Manzoor and Mst. Tanzeela Bibi and submitted challan against them declaring the other accused innocent, appeared as P.W.10 and deposed those facts on oath.

Statements of remaining P.Ws. are more or less of a formal nature.

7. Learned counsel for the appellant, after having gone through the evidence contended that conviction of the appellant- under section 10(2) Offence of Zina (Enforcement of Hudood) Ordinance is not maintainable.

Learned counsel pointed out that none of the P.Ws. had stated at the trial that he had seen the appellant committing Zina with Mst. Tanzeela nor anyone of them had stated that he had seen the appellant living with Mst. Tanzeela or moving about like husband and wife.

Learned counsel argued that the learned trial Judge clearly acted against law by convicting the appellant on the basis of the statement made by Mst. Tanzeela, co-accused of the appellant under section 342, Cr.P.C. for two reasons. Firstly, that the statement was made by Mst. Tanzeela without oath and secondly that the appellant had not been given opportunity to cross-examine her.

Learned counsel, however, did not challenge the conviction of the appellant under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance. However, he prayed for reduction in the sentences.

Learned Assistant Advocate-General, did not challenge the contention of the learned counsel vis-a-vis conviction, under section 10(2) of the said Ordinance. He conceded that the position taken by the learned counsel for the appellant, qua that fact, cannot be refuted. However, he defended the judgment to the extent of conviction under section 16 of the said Ordinance.

8. I have gone through the record and I have found nothing on record to contradict the argument advanced by the learned counsel for the appellant, qua conviction of the appellant under section 10(2) of the said Ordinance. This is a fact on record that none of the P.Ws. who appeared at the trial, had stated about commission of Zina by the appellant with Mst. Tanzeela Bibi. Statement made by Mst. Tanzeela co-accused of the appellant under section 342, Cr.P.C. could not have been used against the appellant for the reason that she had not made that statement on oath nor was the appellant afforded opportunity to cross- examine her. The said statement even otherwise was exculpatory. His conviction under section 10(2) of the said Ordinance is, therefore, set aside.

9. Statement made by Mst. Tanzeela is corroborated by the testimony of Shabbir Ahmad, P.W.9. There is nothing on record to hold that Shabbir Ahmed was inimical to the appellant in any manner.

Statement made by P.W.8 also lends corroboration in a way. Although he was not- any eye-witness but had reached the spot soon after abduction and was told about the occurrence of abduction of his sister, by the P. Ws.

Taking all the facts in view, I am convinced that no interference is called for in the judgment of conviction of the appellant under section 16 of the said Ordinance. The same is, therefore, maintained.

However, keeping. in view all facts and circumstances of the C case, as well as prayer made by the learned counsel for the appellant, I feel, sentence of R.I. for two years, plus to pay a tine of Rs.5,000 in default whereof to undergo S.I. for six months, will meet the ends of justice, Order accordingly.

Benefit of section 382-B, Cr.P.C. shall be given.

N.H.Q./98/FSC Appeal partly allowed.