PLJ 2007 FSC 76
[Appellate Jurisdiction]
Present: Haziqul Khairi, C.J. & Salahuddin Mirza, J.
UMAR DIN and another--Appellants
versus
STATE--Respondent
Crl. A. No. 245/L linked with 259/L of 2005, decided on 7.6.2007.
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----S. 11--Criminal Procedure Code, (V of 1898)--S. 164--Conviction and sentence awarded to appellants, assailed--Benefit of doubt--Two versions--No eye-witness--PWs were not cross examined--No mark of violence or injury on abductee/victim's external genitalia nor there were any stains of semen on abductee/victim's body or clothes--Swabs were stained with semen but there was no matching or grouping--Prosecution case had been torn apart by its own PWs and the benefit would resultantly go to the appellants leading to their acquittal--Conviction and sentence set aside with direction to bail authorities to release them. [P. 80] B
Criminal Trial--
----Principle--"Simply by seeking the abductee in the company (of accused) would not attract the ingredients of Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979". [P. 80] A
M/s. Muhammad Farooq Chishti, Ashraf Ali Javed Umar Pasha Chaudhry and Muhammad Arshad, Advocates for Appellants.
Mr. Perviaz Alamgir, Deputy Prosector General for State.
Date of hearing: 20.4.2007.
Judgment
Haziqul Khairi, C.J.--By this judgment we propose to dispose of two appeals filed by appellant Umar Din being Criminal Appeal No. 245/L of 2005 and appellant Muhammad Ishaq being Criminal Appeal No. 259/L of 2005 whereby they have impugned the judgment dated 4.7.2005 passed by the learned Additional Sessions Judge, Lahore, in which they were convicted and sentenced under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, (hereinafter referred to as "the said Ordinance") to life imprisonment each, 10 stripes each and fine of Rs. 50,000/- each or in default to further suffer 3 months S.I. each.
2. Brief facts as appearing from the record are that on 6.5.1999 at 7.00 a.m., Mst. Amina Bibi (PW.4) sister of complainant Shahbaz Khan (PW.2) told him that her daughter Mst. Sadaf victim aged 15/16 years (not produced) was missing from the house in the night and had not returned. When he went out in search of her, Abdul Hamid PW (not produced) and Masood Akhtar (PW.3) informed him that at about 4.00 a.m. while deboarding at Lidher Bus Stop from Bhatta Chowk, they saw that Muhammad Ismail, Muhammad Ishaq, Yaqoob, Ibrahim, Imran and Mst. Nusrat Bibi accused alongwith Mst. Sadaf were standing at the said bus stop. According to the complainant the victim was enticed away by Ismail etc. for committee zina with her.
3. Subsequent to the registration of FIR on 14.5.1999 the alleged abductee Mst. Sadaf Bibi appeared before the police and she got her statement recorded on oath under Section 164 Cr.P.C. by a Magistrate wherein she implicated Ismail, Muhammad Yaqoob, Umar Din and Muhammad Ishaq for her abduction. During investigation by police appellants Muhammad Ishaq and Umar Din were found guilty and their challan was submitted for trial. Formal charge against them for commission of offence under Section 11 of "the said Ordinance" was made to which they pleaded not guilty and opted for trial.
4. During trial the prosecution examined Dr. Lubna Naseem (PW. 1) who medically examined abductee Mst. Sadaf Bibi and produced MLR, PWs. Khurshid Ahmad C/3144, Muhammad Arham SI, Muhammad Riaz, HC, Muhammad Jamil Constable and Sher Muhammad Pasha SI were formal witnesses and their depositions relate to investigation process of the recording of FIR, dispatch of swabs for chemical examination and of other formal nature and they had not been cross-examined by the defence.
5. The testimony of Shahbaz Khan complainant (PW.2), Masood Akhtar Khan (PW.3) and Mst. Amina Bibi (PW.4) relates to the factum of abduction of Mst. Sadaf Bibi by appellants Muhammad Ishaq and Umar Din. While PW.4 deposed that when she got up in the morning her daughter Sadaf Bibi was missing, she informed PW.3 her brother about it who went out in search for her and was told by Masood Akhtar (PW.3) and Abdul Hameed (not produced) that while they deboarded a Wagon coming from Bhatta Chowk, they saw the appellant Muhammad Ishaq, Muhammad Yaqoob, Muhammad Ibrahim, Muhammad Ismail (but not appellant Umer Din) with Mst. Nusrat Bibi at the bus stop at about 4.30 a.m. Masood Akhtar (PW.3) confirmed this position in his depostiion. Mst. Amina Bibi (PW.4) testified that the appellants had been visiting her house she came to know through Hameed and Maqsood that they had seen Mst. Sadaf Bibi alongwith the appellant Ishaq, Mst. Nusrat Bibi and Muhammad Yaqoob. What is pertinent to note is that PW.2 Shahbaz Khan and PW.3 Masood Akhtar Khan who saw the victim alongwith the accused persons at the Bus Stop were not cross-examined on this point and were simply asked if the victim had died to which they replied in affirmative. Similarly PW.4 Mst. Ameeran Bibi, mother of the victim was not cross-examined at all so also other witnesses produced by the prosecution although opportunity was provided to the appellants. Abductee Mst. Sadaf Bibi in her statement under Section 164 Cr.P.C. had implicated accused Umar Din for her abduction alongwith other co-accused, namely, Muhammad Ismail, Muhammad Yaqoob and Muhammad Ishaq.
6. According to learned counsel for the parties also the abductee died during the trial. However her statement on oath U/S 164 Cr.P.C. was recorded by Mr. Muhammad Usman Ghani (PW. 11) after she came back. She stated as under:--
"On 5.5.1999 at about 9/9.30 p.m. I was watching T.V. in my house when there was a knock at our door. I opened the door because all others in the house were sleeping. Mst. Nusrat who is my neighbour asked me to accompany her to her house and on my inquiry she told me that she will let me know about it at her house. A car was parked in front of Nusrat's house. When I was passing by the car, Ishaq the brother-in-law (brother of Nusrat's husband) and Umar (Ishaq's friend) forcibly pushed me into the car and administered something whose smell made me unconscious. In the morning Ishaq was sitting beside me. He asked me to get married to him which I refused. He then served me tea, where after I again became unconscious. When I regained my conscious, I came to know that I was in a village and many persons were gathered around me. They told me that they had left me with my parents. Our village is near the other village."
7. Thus there are two versions of the case before us. Admittedly there was no eye-witness to the abduction of Mst. Sadaf from her house. PW.4 Amina Bibi, her mother found her missing from the house when she got up in the morning. Prosecution witness P.W. Masood Akhtar saw her in the company of accused persons at the Bus Stop on 6.5.1999 at 4.30 a.m. The version of Mst. Sadaf is that by deceit she was taken out from her house at 9/9.30 p.m. on 5.5.1999 by Mst. Nusrat, her neighbour, where after the accused took her away in a car by administrating something the smell whereof made her unconscious. Both the stories are poles apart and not only contradictory but also demolish one another on all material respects. If the first version is accepted then PW.3 Masood Akhtar saw her in the company of accused at a public place but she raised no hue and cry sought help from him or others. It was held in the case of State Vs. Khuda Dad & another (PLJ 2003 SC 716), that "simply by seeing the abductee in the company (of accused) would not attract the ingredients of Section 11 of the Ordinance." Again nowhere in her statement U/S 164, Cr.P.C. she has involved any of the appellants for Zina, however, appellant Ishaq had asked her if she would marry him. The proposal of marriage would not by itself come within the ambit of Section 11 of the Ordinance unless accompanied by force or coercion which we do not find in her statement under Section 164 Cr.P.C.
8. Learned counsel for the appellants Mr. Ashraf Ali Javed brought to our notice the statement of Mst. Sadaf on oath and stated that the appellants were not provided the opportunity of cross-examining her in terms of Section 164(1.A) Cr.P.C. Since Section 164 Cr.P.C. does not contemplate statement on oath it was the duty of the learned Magistrate to have told her so but he did not. As regards providing opportunity to the accused to cross-examine her it is not a mandatory requirement as the accused may not be available at the relevant time. Failure to do so will not vitiate the confession or its evidentiary value. It was further urged by him that Mst. Sadaf being 16 years old was an adult within the meaning of Section 2 of the Ordinance and had attained puberty. In the case of Abdul Jabar Vs. The State (PLD 1991 SC 172 Shariat Appellate Bench), it was held that a female may attain puberty even earlier. There were no mark of violence or injury on her external genitalia nor there were any stains of semen on her body or clothes. The swabs were stained with semen but there was no matching or grouping.
9. In view of what
is stated above, the prosecution case has been torn apart by its own PWs. and the benefit thereof shall resultantly go to the
appellants leading to their acquittal. We are, therefore, unable to endorse the
impugned judgment passed by the learned Additional Sessions Judge,
(A.S.) Accused acquitted.