MUHAMMAD IQBAL Versus THE STATE

S.A. MANAN, J.----- Muhammad Iqbal and Faqeer Muhammad have filed this Criminal Appeal No.24/1 of 2004 against the judgment, dated 5-1-2004 of the Additional Sessions Judge, Taunsa, Camp at Dera Ghazi Khan, convicting the appellants under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance for a term of 15 years' R.I. each, with a fine of Rs.20,000 each and in default to further undergo two years' S.I. each and 30 stripes each. Benefit of section 382-B, Cr.P.C. was also granted to the appellants.

2. Briefly stated F.I.R. No. 168 dated 17-5-1997 Police Station Kot Chutta, District Ghazi Khan was registered on the complaint of one Muhammad Ramzan against the appellants with an allegation of Zina-bil- Jabr by them with one Mst. Karim Khatoon daughter of Allah Wasaya deceased. Complainant Muhammad Ramzan is the cousin of Allah Wasaya deceased.

The aforementioned Allah Wasaya was married with one Mst. Aziz Mai and on his death the latter contracted second marriage with Faqeer Muhammad accused. Out of the previous wedlock there were six girls and one boy and victim Mst. Karim Khatoon was one of the daughters of Allah Wasaya.

3. Before the registration of case Mst. Karim Khatoon/victim was carrying on pregnancy of 29 weeks and she went to attend death ceremony of her maternal-grandfather and there she disclosed that she was pregnant and. was subject to Zina-bil-Jabr by her step-father Faqeer Muhammad and Muhammad Iqbal a relation of the latter. On the basis of this information Muhammad Ramzan cousin of Allah Wasaya got the F.I.R. registered with Police Station, Kot Chutta and in pursuance thereof both the appellants were sent up for trial.

4. The appellants were charge-sheet on 25-5-1999 and they did not plead guilty and claimed trial.

5. P.W.1 Dr. Tanvir Fatima medically examined the victim on 17-5-1997 at D.H.Q. Hospital Derv Ghazi Khan confirming the age of the victim about 17/18 years and also certified the pregnancy. The lady doctor advised complete urination examination, complete blood examination and ultrasonography. Thereafter Lady Dr. Shaheena Karim on 23-6-1997 conducted a ultrasound of the victim and confirmed the pregnancy.

Admittedly the victim has concealed the pregnancy throughout until she attended the demise of her paternal-grandfather which has been taken note of by the trial Court on page 5 of the judgment and the portion of which is reproduced as under:--

"Meanwhile her maternal-grandfather died and they went to the house of her maternal-grandfather. At evening time her maternal-uncle Khuda Bakhsh, paternal-uncle Ramzan and paternal grandfather Siddique were present in the house of her maternal-grandfather. She informed them of the whole story. at that time she was pregnant. She also informed about her pregnancy to her relatives that she is pregnant for six months."

The factum of pregnancy was admitted by the alleged victim, P. W .3 in her examination-in-chief deposing that, "at evening time my maternal-uncle Khuda Bakhsh, paternal-uncle Ramzan and paternal-grandfather Siddique were present in the house of my late maternal-grandfather. I informed them the whole story. At that time I was pregnant. I also informed my relatives that I am pregnant for six months". This statement was made before the Court on 24-5-2001. She further stated that, "after three days I alongwith my mother, Ramzan my paternal-uncle and other relatives proceeded to police station and lodged the F.I.R.". One fact is, therefore, established that three days before the registration of the case the victim P.W.3 was pregnant for six months.

She deposed in her statement that in the absence of her mother, who had gone out for cutting fodder, Faqeer Muhammad her step-father committed Zina with her forcibly and this fact was informed by the victim to her mother. It is also stated that the disclosure by the victim would result in her beatings by Faqeer Muhammad. The victim also stated that Muhammad Iqbal also committed Zina with her forcibly.

6. From the evidence it is established that when the F.I.R. was registered by Muhammad Ramzan, the victim was pregnant and before that she did not take any positive step to report the matter to the police. It appears that the victim herself was indulging in sexual activities and no evidence is forthcoming that the appellants used any force whatsoever to commit Zina-bil-Jabr. There is also oblique reference by the victim that Muhammad Iqbal was also committing the crime.

7. It is in the statement of the victim that she lived in the house of Aman Ullah constable at Rajanpur with her aunt Mst. Asho.

8. Muhammad Siddique, P.W.4 uncle of the victim admitted that, "it is correct that a civil litigation is pending between him and Mst. Aziz Mai (mother of the victim) and also a criminal complaint is vending against me. It is correct that Mst. Karim Khatoon usually visited the house of her maternal-aunt at Rajanpur, before registration of the case. He further deposed that a Hudood case was registered against Mst. Nazir Mai maternal-aunt of victim Karim Khatoon." This fact is also certified by the victim stating that, "it is correct that a case was registered against my maternal-aunt under Hudood laws and she was arrested in that case, that case was registered at the instance of our enemies. She, further admitted, "that it is correct that a civil suit is pending between Mst. Aziz Mat and Muhammad Siddique my maternal-grandfather and Ramzan P. W . Further it is correct that another civil suit is pending between my mother, Muhammad Siddique, Khuda Bakhsh and Ramzan P.Ws." The aforementioned is the personal background of the victim P. W .3 who, has already kept the pregnancy secret and unfolded it after about six months when she went to the house of her paternal-grandfather on his death. Three days thereafter complainant lodged the present F.I.R. against Faqeer Muhammad step-father of the victim under Hudood laws. Admittedly there is no other evidence direct or indirect to connect the appellants with the commission of the crime except the bare version of the victim who herself seems to be a girl of easy virtue and this is supported by the evidence of lady doctor, P.W.1 who deposed that hymen was torn completely from all sides, this goes to show that the girl was used for sex activities more often.

9. Prosecution produced P.W.4 Muhammad Siddique who deposed. that the paternal-grandfather of Mst. Karim Khatoon (victim) was expired and after burial he alongwith Ramzan and Khuda Bakhsh were, present when the victim came to us and informed that Faqeer Muhammad and Muhammad Iqbal committed Zina with her and she also informed about her pregnancy. In these circumstances, "on 17-5-1997 we went to the police station and registered the case against the accused. I came back to my house while Ramzan, Ibrahim and Mst. Karim Khatoon proceeded to hospital for medical examination after the registration of the case". He admitted in cross-examination that a civil litigation is pending between him and Aziz Mali mother of the victim and also a criminal complaint against him. He further certified that Mst. Karim Khatoon usually visited the house of her maternal-aunt at Rajanpur. From this statement it is clearly demonstrated that the victim was not only confined to her own house but was visiting other places as well particularly the house of her maternal-aunt against whom Hudood cases were registered.

10. Muhammad Ramzan is P.W.5 cousin of Allah Wasaya deceased and he reiterated the statement of P. W .4.

11. On the basis of the medical examination two vaginal swabs were sent to Chemical Examiner and received by him on 17-5-1997 and the result was positive, that the above articles, two vaginal swabs and piece of Shalwar were stained with semen.

12. Accused Faqeer Muhammad was examined under section 342, Cr.P.C. and he denied the prosecution evidence and pleaded in answer to Question No.7 that, "I contracted second marriage with Aziz Mai widow of Allah Wasaya. It was without the consent of her parents. In order to vex me they have involved me in this case".

13. In defence Mst. Aziz Mai, mother, of the victim appeared and she categorically stated that, "after the death of Allah Wasaya the unmarried children started living with Ramzan (complainant). Faqeer Muhammad is now my spouse. I entered wedlock with him against the consent of Ramzan etc. He was not happy. He did not allow to settle in the house of Allah Wasaya. I demanded my share in the house and other belongings of Allah Wasaya, but Ramzan did not give it to me. Karim Khatoon never lived in our house. Faqeer Muhammad and Iqbal never raped Mst. Karim Khatoon. I had filed a complaint against Ramzan etc. which is pending. This case was lodged by Ramzan because of grudge over my second Nikah with Faqeer Muhammad and because of my demand for share in the estate of Allah Wasaya. The accused are innocent in this case".

She was cross-examined and denied the allegations that the victim was raped by Faqeer Muhammad.

14. The trial Court has convicted and sentenced the appellants for a term of 15 years', R.I. each with a fine of Rs.20,000 each but tailed to apply its mind to the vital issues, even the evidence on record has not been gone through and therefore, this is a case of misreading of evidence.

15. It is held by the Honourable Supreme Court that the statement of a P.W. cannot be believed if it is not natural, truthful, reliable and confidence-inspiring. In this particular case the conduct and character of the victim is not free from doubt and she had been roaming about according. to her free-will. It is in the evidence of P.W.4 that she had been visiting Rajanpur to meet her aunt who herself was involved in Hudood cases. Her aunt was married to a constable namely Aman Ullah. The victim kept the pregnancy secret .for more than six months and this was unfolded when she went to the house of her paternal-grandfather and there Muhammad Ramzan, complainant was also present. She unfolded this secret pregnancy on the basis of which Ramzan filed the present complaint and consequently the F.I.R.

16. It is in the statement of Ramzan P.W.5,. maternal-uncle of the victim that he had been visited the house of victim. If that be the position how on earth he could not take notice of the pregnancy of the victim. This is also one of the moot points in the case that why the case was not registered by the victim earlier.

17. The statement of D.W.1 Mst. Aziz Mai cannot be brushed aside who clearly stated that complainant was unhappy over her marriage with Allah Wasaya and not only this she demanded her share of H the property from Ramzan but the same was refused resulting in civil litigation.

18. Siddique and Ramzan, P.Ws. are maternal-uncles of the victim and both of them have admitted their involvement in a civil and criminal litigation with Mst. Aziz Mai mother of the victim.

19. It appears that when the victim visited the house of her paternal grandfather on his demise a conspiracy was hatched against the present appellants and after the burial Ramzan complainant recorded the F.I.R. against the appellants.

20. Muhammad Iqbal is the nephew of Faqeer Muhammad and he is making a truthful statement to his involvement because of Faqeer Muhammad.

21. Statement of Mst. Aziz Mai, mother of the victim as D.W.1 further elucidates that Mst. Karim Khatoon was not living with her. There is no evidence on record to rebut this. In this view of the matter the plea of the victim that she was subjected to Zina-bil-Jabr by her step father Faqeer Muhammad in absence of her mother who had gone for fodder cutting, is not at all plausible.

22. The upshot of the above discussion is that no reliance can be placed on the statement of the victim who concealed the pregnancy for more than six months, that there is a litigation between the P. Ws. maternal-uncles of the victim and Mst. Aziz Mai mother of Karim Khatoon in the nature of civil suits. On the top of it Ramzan had been visiting the house where Mst. Karim Khatoon allegedly was living and it was obviously for the complainant to notice the pregnancy and further enquire into the matter which situation has not been explained and that the present criminal, proceedings have been initiated by Muhammad Ramzan and Muhammad Siddique because of the property dispute. Over and above Ramzan was not happy as to the second marriage of Mst. Aziz Mai with Faqeer Muhammad after the death of Allah Wasaya deceased.

23. The evidence of victim P.W.3 Mst. Karim Khatoon and that of her maternal-uncles P.Ws.4 and 5 respectively is rejected.

24. The prosecution has not proved its case beyond any reasonable doubt. The impugned judgment, dated 5-1-2004 of the learned Additional Sessions. Judge, Taunsa Camp at D.G. Khan, ,convicting the appellants to .a term of 15 years each with a fine of Rs.20,000 each and in default to further suffer two years S.I. is set aside and the appeal is accepted.

Since the sentence of stripes has been abolished, the same is also set aside being not enforceable.

25. For the reasons stated above the appeal filed by the two appellants namely Faqeer Muhammad and Muhammad Iqbal is accepted and they have been ordered to be released forthwith if not required in any other case by our short order, dated 21-4-2004.

H.B.T./33/FSC Appeal accepted.