GHULAM MUHAMMAD vs THE STATE

TANZILUR RAHMAN, C.J.--- This appeal arises out of judgment dated 2-4-1990, passed by learned Ex Officio Additional Sessions Judge, Quetta, whereby, the appellant was convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as `the said Ordinance') and sentenced to suffer rigorous imprisonment for four years, whipping numbering ten stripes and to pay a fine of Rs.1,000 and ill default of payment of fine to further suffer S.I. For two months.

2. The facts, briefly stated, are that on the receipt of a `Murasala' from Yar Muhammad, Inspector Police, Crime Branch, Quetta, through S.I. Muhammad Siddique the F.I.R. Was recorded. The English version whereof is reproduced as under:-- "It is submitted that on secret information of an agent that one person Ghulam Muhammad resident of Killi Khairabad near Bend Khushdil Khan, Pishin, used to sell the Bangali women and the said person has confined and detained a woman unlawfully. Knowing the information a real one search-warrants were sought from 1st Class Magistrate of the area for search of the house and a raid party was prepared which consisted of Mr. Rafiq, A.S.P. Crimes Branch, Fazal Dad Inspector, Bashir Ahmed, Inspector, Hayatullah Khan Inspector, Khaliq Dad Khan Inspector and Yar Muhammad Khan Inspector and me were present. Apart from these personnel Sub-Inspector Muhammad Nazir, Sub-Inspector Muhammad Alam, Sub-Inspector Muhammad Naveed Ahmed and other then the subordinate staff was also driven to the place. On reaching Khairabad in execution of search-warrants the search of the house of Ghulam Muhammad mentioned were effected. During the search of the house Inspector Khaliq Dad. Inspector Bashir Ahmed were present as witnesses to the proceedings of search. During search of the house Ghulam Muhammad in the northern/western part of the house there was situated a room whereof a Bangali woman was recovered and the said identified herself with the name of Mst. Haleema wife of Suleman, Caste Pepari resident of Manda Para, Bangaldesh. She further told that she came out of Bangladesh alongwith a man named Babul and was brought to Punjab then was further brought to the present place through another Bangali person in the last days of previous Ramzan, whereafter Ghulam Muhammad and Siddiq Bangali contrary to her will sold her to one local person namely Muhammad Pathan in consideration of Rs.15,000. She remained with him for three days and afterwards she was handed over back go Ghulam Muhammad. The abovementioned Muhammad make an attempt of Zina-bil-Jabr with her but did not succeed. She was brought here through fraud and deception. Ghulam Muhammad confined and detained her and watched her because he intended to dispose of her somewhere other. In view of the details of circumstances and incidence it is believed that sections 10, 11, 13 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are attracted. The abovementioned Murasala for the purpose of registration of case through Sub-Inspector Muhammad Siddiq is being sent and the case under the abovementioned offence may be registered and for Number of F.I.R. May be informed. For investigations Inspector Fazal Dad is hereby given liability."

As a result of the F.I.R. The convict/appellant alongwith other co-accused Amir Muhammad and Muhammad was arrested on the same day and after investigation the 'challan was submitted before the trial Court. The charges under sections 10, 11, 14 and 16 of the said Ordinance were framed against the said accused persons.

3. The prosecution in support of the said charges produced six witnesses P.W.1 Yar Muhammad, is a D.S.P., who effected the arrest of the appellant/convict. P.W.2 Khaliq Dad is the Inspector, Crime Branch, who was alongwith P.W.1 at the time of the said arrest. P.W.3 Abdul Khaliq, is a Magistrate, who recorded the statement of Mst. Haleema under section 161, Cr.P.C. P.W.4 Dr. Rehana Qazi is Lady Inspector of Health Services, who conducted medical examination of Mst. Haleema. P.W.5 Dr. Gul Khan is the Ex-Police Surgeon Civil Hospital, who examined the appellant and other co---accused as to their potency and P.W.5 Fazal Dad is another member of the police party who also conducted the investigation.

4. All the accused/appellants were examined under section 342, Cr.P.C. And also made their statements on oath under section 340(2), Cr.P.C. Besides, the appellant produced two defence witnesses as D.Ws.1 and 2 and the accused Amir Muhammad also produced one witness as D.W.3 whereas accused Muhammad did not produce any witness in defence.

5. The leaned trial Judge after recording the evidence and hearing the learned counsel for the prosecution and the defence convicted and sentenced the appellant Ghulam Muhammad. Co- accused Amir Muhammad and Muhammad were, however, acquitted.

6. We have heard the learned counsel for the appellant and Raja Muhammad Afsar, learned Advocate-General, Baluchistan.

7. It appears that the learned trial Judge has mainly relied upon 164 statement of Mst. Haleema, the alleged victim but her statement under section 164, Cr.P.C. Cannot be read as evidence in the case as she has not been examined as a witness in the Court. The requirements for admitting such statement as laid down in Article 47 of the Qanun-e-Shahadat, 1984 are also missing in the case.

The learned Advocate-General concedes that the non---examination of Mst. Haleema in Court as witness has proved fatal to the prosecution case.

8. We enquired from the learned Advocate-General if it was possible for the prosecution to now produce Mst. Haleema in the case under section 428, --Cr.P.C. But on the basis of the instructions received from Abdul Majeed. Inspector, Crimes Branch, who is present in Court, it was stated by him that Mst. Haleema is untraceable and the prosecution is unable to produce her in the Court.

9. On reading the entire evidence led in the case it appears that the wife of Ghulam Muhammad and the wife of Muhammad Siddique named Hawwa are sisters inter se and Mst. Haleema was brought to the house of Ghulam Muhammad as Mst. Haleema was related to his wife, who seems to have afforded protection to Mst. Haleema.

10. There being no evidence of enticing or taking away or detaining with criminal intent, the alleged victim Mst. Haleema. No case is made out against Ghulam Muhammad, the appellant/convict. We would, therefore, accept this appeal. The conviction and the sentence are set aside. The learned Advocate General also concedes that the appeal merits acceptance.

11. The appellant, who is present in Court on bail is acquitted of the charge. The bail bonds shall stand discharged.

N.H.Q./732/FSC