MUHAMMAD BASHIR Versus STATE

Muhammad Bashir son of Allah Ditta, aged 35 years, has been convic ted under section 11 of the Zina Ordinance for kidnapping Mst. Nasreen P. W. 4, aged 14/15 years and was sentenced to life imprisonment plus 15 stripes as well as fine of Rs. 1,000 or in default to undergo one year rigorous imprisonment. He was also convicted under section 10 of the Zina Ordinance for having committed Zina with Mst. Nasreen P. W. and was sentenced to ten years rigorous imprisonment plus 30 stripes as well as tine of Rs. 1,000 or in default to undergo one year rigorous imprisonment. The sentences of imprisonment have been ordered to run concurrently and the judgment has been passed against him on 28th February, 1980 by the Additional Sessions Judge, Faisalabad. The jail appeal of Muhammad Bashir convict is being disposed of by this judgment.

2. The occurrence took place, in the instant case, 9/10 days before the registration of the case at the instance of Sarwar Shah P. W. father of the girl. The case was registered on 23rd March, 1979 at 3-15 p. m. at Police Station Civil Lines Faisalabad. In the F. I. R. it is stated that the appellant as well as Sarwar Shah P. W. were working as labourers in the Crescent Textile Mills and the appellant was living in one room of the house of Sarwar Shah P. W. as his tenant. 15/16 days before the occur rence the appellant left the job at the Mills and also vacated the room where he was staying in the house of Sarwar Shah P. W. 9/10 days there after while Sarwar Shah P. W. had gone to work, he was told by his wife Mst. Haneefan Bibi that his daughter Mst. Nasreen Begum P. W. aged about 14/ 15 years, who was unmarried, had left the house at about 9-00 p. m. and had not returned. Thereupon, Sarwar Shah P. W. went out in search of Mst. Nasreen Begum P. W. He was told by Abdul Qadeer P. W. and Mistri Muhammad Ibrahim that they saw Mst. Nasreen Begum P. W. at 9-30 p. m. going alongwith the appellant towards the city. Thereafter, Sarwar Shah P. W. kept on looking for his daughter but he could not find any trace of them. On the next day he alongwith Mistri Muhammad Ibrahim and Abdul Qadeer P. W. went to Kot Umar. District Jhelum, and met the father of the appellant and demanded the return of the girl. The father of the appellant, in the presence of the res pectables promised that he would return the girl who had been abducted by his son within a few days. But this was not done and, therefore, the case was registered. It was further stated by Sarwar Shah P. W. that the appellant had kidnapped Mst. Nasreen Begum P. W. in order to commit Zina with her. On the basis of this report the case was registered against the appellant under section 10/I1 of the Zina Ordinance and the Investi gating Officer proceeded to recover the girl. According to the copy of the extract of the birth register Mst. Nasreen Begum P. W. was born on 29th March, 1964 and that, therefore, at the time of the occurrence she was about 15 years old. There is also report of the Radiologist on the file which indicates that she was about 16 years old. Anyway, there is no denying of the fact that at the time of occurrence Mst. Nasreen Begum P. W. was between 15/16 years of age.

3. The record indicates that the said Mst. Nasreen Begum P. W. appeared in the Court of the Resident Magistrate Pind Dadan Khan on 19th April, 1979 and made the statement to the following effect. She stated that her parents had kept the appellant as a tenant in their house and her father used to receive cash payment as well as goods for preparing her dower from him and that her father had promised to perform her nikah with the appellant. She had also approved of the marriage with the appellant. She stated that her mother was alive but her father had divorced her and had married for the second time. Ever since her step mother had come to live in the house with her father, she had disapproved her marriage with the appellant on which Mst. Nasreen Begum P. W. told her that if she was to marry, she would only marry the appellant and she would not think in terms of marrying someone else. On this her father and her step-mother started beating her whereupon she at her own accord left the house of her parents and went to Kot Umar District Jhelum, to the appellant. She further stated that she had made up her mind to enter into nikah at her own free will with the appellant and that she had left the house of her father with only the clothes which she was wearing and she had not brought anything else from there. She also stated that she had not been enticed away by any one. However, on 18th April, 1979 while she was in the house of the appellant, Miran Bakhsh and Allah Ditta came there and started abusing her and also gave her slaps. They did so because they wanted to get her married to one of their relatives. But she refused to oblige them. Thereafter Ameer Din and some others came to the spot and rescued her. She stated that she was 18 years old and was of age. She also stated that she wanted to enter into marriage contract with the appellant at her own free will and that uptill that time she was "a virgin". So, this is the statement which the girl had made before the Magistrate on 19th April, 1979 while she was in the company of the appellant.

4. The police eventually arrested the appellant from the General Bus Stand Faisalabad, alongwith Mst. Nasreen Begum P. W. on 24th April, 1979. It is evident that only the appellant was made the accused person in this case and Mst. Nasreen Begum P. W. was not made an accused person but was made a witness.

Dr. Nafees Akhtar P. W. medically examined her, on 25th April, 1979 and found that her hymen was broken and the tears were old and healed. Two vaginal swabs were taken for -the detection of semen and sent for chemical examination. It is not indicated that there were any marks of violence on her body. Subsequently, according to the Chemical Examiner stains of semen were found on the vaginal swabs.

It is evident that she had been with the appellant more than a week and from this it can also be gathered that she had been subjected to sexual intercourse.

5. The case of the defence, as apparent from the statement of the appellant before the trial Court, is as follows. He used to live in the house of the complainant as a family member. Sarwar Shah P. W. had promised to give the hand of Mst. Nasreen Begum P. W. to him in marriage. He resided in their house for about two years before the occur rence. He was told to go away by Sarwar Shah P. W. from his house as his wife had picked up a quarrel with him about the proposed marriage of Mst. Nasreen Begum P. W. with him. Mst. Nasreen Begum P. W. was aged about 17/18 years. She came to his house in village Kot Umar in District Jhelum at her own accord and he had not kidnapped her. He got her statement recorded by a Magistrate at Pind Dadan Khan. After recording of this statement he got married to Mst. Nasreen Begum P. W. although the Nikah was not registered. He only cohabited with Mst. Nasreen Begum P. W. after nikah with her was performed according to the Islamic law. The nikah was performed on the same day on which her statement was recorded by the Magistrate. Mst. Nasreen Begum P. W. remained with him for 4 to 5 days after the nikah. Thereafter, a raid was conducted on his village Kot Umar by the police and he was arrested alongwith Mst. Nasreen Begum P. W. Both of them were brought to Faisalabad from there. He pleaded that he was innocent but did not produce any defence.

6. It may be pointed out at this stage that there is no other relevant evidence on the record about the charges as against the appellant except the statement of Mst. Nasreen Begum P. W. herself made at the trial stage. At the trial stage she supported the prosecution version. In her examination-in-chief she stated while the appellant was residing in their house as a tenant, he used to induce her to elope with him. On the day pf the occurrence at about 9-00 p.m. she went to the fields to answer the call of nature where the appellant met her and told her that her father had received an injury and that she should accompany him to the hospital. It was on this pretext that she had accompanied the appellant. On the way, she met Mistri Muhammad Ibrahim and Abdul Qadeer P. W. who were her Mohalladars. But strangely enough she did not tell them anything about the injury of her father or as to why she was accompanying the appellant. According to her, the appellant hired a rickshaw and then took her to the General Bus Stand Faisalabad. Then they rode in bus and went to Multan. According to her she was eventually taken to Jhelum in a train and it was there that the appellant committed zina-bil-jabr with her in his house. Event ually, the appellant was taking her from Jhelum city to a village where his sister resided when a police party met them in Jhelum and arrested the appellant and brought both of them back to Faisalabad. She stated that she was medically examined and that the appellant had abducted her in order to subject her to illicit intercourse. In the cross-examination she stated that she was produced before a Magistrate at Pind Dadan Khan by the appellant and she was made to state that she had accom panied the appellant at her own free will. She had stated before the Magistrate that she was 18 years old but that statement was made under duress. She had not stated before the Magistrate that she was engaged to the appellant. She also did not state that her step-mother wanted to marry her to someone else against her wishes. She was medically examined 4 or 5 days after her recovery from Jhelum. She was kept in the police post or at her house during this period. There were lady constables at Police Post and it was correct that she was told by the police that if she failed to depose against the appellant, she would herself be convicted and sentenced to 25 years R. I. She also stated that it was incorrect to suggest that she had gone to the village of the appellant in District Jhelum at her own free will or that she had married the appellant according to the Islamic law or that she had not been subjected to illicit intercourse by the appellant.

7. I have heard learned counsel for the State. The only point which requires determination, in the instant case, is as to whether the charges as against the appellant stand proved. Can it be categorically stated that the appellant had kidnapped Mst. Nasreen Begum P. W. ? In the light of her statement made before the Magistrate, she has cate gorically stated that she herself went to Kot Umar, the village of the appellant, in District Jhelum after leaving her parents' house. This statement seems to be supported by the circumstances. For instance, it is stated in the F. I. R. that the girl had gone out of the house at 9-00 p.m. and thereafter she did not return. However, she was seen going towards the Bus Stand in the company of the appellant by Abdul Qadeer P. W. and Mistri Muhammad Ibrahim. In her statement before the trial Court Mst. Nasreen Begum P. W. stated in the crass-examination that when she saw these neighbours she did not tell them that her father was lying injured in the hospital or that what was the reason why she was accompanying the appellant. It may be stated that in her statement before the trial Court she deposed that the appellant had enticed her away while she went out of the house to the fields in order to respond to the call of nature. But that statement before the trial Court could have been made under the fear that if she was not to depose against the appellant, she herself could be made an accused and could be convicted and sentenced to imprisonment for life, etc. In the F. I. R. and in the statement of Sarwar Shah P. W. it is also stated that the appellant had left the job at Mills as well as had left the house 15/16 days before the present occurrence. In the light of this evidence it can be stated without any shadow of doubt that the charge of kidnapping Kist. Nasreen Begum P. W. as against appellant is not free from doubt, particularly in the light of the principle laid down in Falak Sher v. State (P L D 1982 F S C 240). as well as the definition of adult given in section 2 of the Zina Ordinance. In that view of the matter, in my view, his conviction under section 11 of A the Zina Ordinance for kidnapping Mst. Nasreen Begum P. W. as well a sentence awarded thereunder were not proper and are liable to be set aside. The result is that the conviction as well as sentence awarded to the appellant under section 11 of the Zina Ordinance are hereby set aside and he is acquitted.

Now, I come to the allegation that he had committed Zina with Mst. Nasreen Begum P. W. On that allegation he has been convicted under section 10 of the Zina Ordinance and sentenced to ten years rigorous imprisonment plus 30 stripes as well as fine of Rs. 1,000 or in default to undergo one year rigorous imprisonment. The appellant does not, say that he has not committed sexual intercourse with Mst. Nasreen Begum P. W. but he has stated that ho cohabited with her after Nikah was performed with her on the very day she had made a statement before the Magistrate absolving him from the liability of kidnapping her. However, the nikah was not registered and, therefore, it could not be strictly proved perhaps as required in any civil proceedings. However, returning to the statement of Mst. Nasreen Begum P. W. made before the Magistrate, it is evident that she had stated that upto that date she was virgin and that she had taken a decision to enter into Nikah with the appellant at her own free will. The case of the appellant is that after that statement was recorded, he entered into nikah with her and thereafter when she became his lawfully wadded wife he cohabited with her as they lived together or a period of more than a week before the police raided the house and arrested the appellant as well as recovered Mst. Nasreen Begum P. W. Thus, this is briefly the case of the appellant. Mst. Nasreen Begum P. W. in her statement before the trial Court denied that she entered into any nikah ceremony with the appellant and stated that he had been committing zina-bil-jabr with her against her wishes. It is difficult to accept this statement as correct, particularly in the light of what she had stated before the Magistrate and also for the reason that she was making the statement before the trial Court while being made cautious by the police that if she did not depose against the appellant, then she herself would be made an accused-person and convicted and sentenced to life imprison ment etc. It is, therefore, evident that whatever statement she had made before the trial Court, it was made under some sort of fear or coercion. Had she stated that she had voluntarily slept with the appellant and furthermore, if she had also stated that the nikah was performed between them, although it was not registered, it was still possible, as she was warned by the police that since the nikah could not be established or proved, she would meet the same fate in regard to the conviction and sentence as the appellant and that it was under this fear and coercion that she made the statement totally contradictory to what she had previously stated before the Magistrate. Thus, instead of saying that she was making the statement before the trial Court under coercion, she deposed that her earlier statement was made under duress. Be that as it may, it was held in Arif Hussain and another v. State (P L D 1982 F S C 42) that even if the nikah is not registered, but if a man and a woman certify mutually that the nikah had been performed, then two witnesses for the same need not be produced. In the light of this decision, from the point of view of Islamic law it is not necessary to prove the contract of marriage, i.e. nikah only through a written document. In other words, if the nikah is not registered, then either two witnesses could be produced in support of this fact or the man and the woman i.e. husband and wife should together certify the fact. In the instant case, Mst. Nasreen Begum P. W. in her statement before the Magistrate, has categorically stated that she was a virgin upto that time and that she was going to enter into nikah with the appellant. The appellant, in his statement before the trial Court, stated that he entered into nikah with Mst. Nasreen Begum P. W. on the same day when she made the state ment before the Magistrate and they cohabited only after the nikah was performed. It is correct that the factum of Nikah does not stand proved if the civil view point is adopted as there is no written document. But in proceedings of criminal nature, evidence of this kind could raise doubt. Consequently, I am of the view that so far as the charge of Zina as against the appellant is concerned, he should have been given the benefit of doubt.

In the circumstances, his conviction under section 10 of the Zina Ordinance as well as sentence awarded thereunder were not proper. The result is that I give the benefit of doubt to the appellant also on this charge and set aside his conviction as well as sentence awarded to him under section 10 of the Zina Ordinance and acquit him.

In the light of what has been discussed above, the jail appeal of the appellant is hereby accepted. As I have acquitted the appellant of both the charges, he shall be released from jail forthwith if not wanted in any other case.

S. G. D. Appeal accepted.