J U D G M E N T

Date of hearing : 23.10.2007

Appellants through Mr. Anwar Ali Shah, advocate.

Respondent The State through Mr. Haji Abdul Majeed, advocate

YASMIN ABBASEY, J: Case of prosecution is that as per complainant on 06.07.2000 when he was on his duty, his wife informed him that his daughter Mst. Tasleem is missing from house from 10:00 a.m. On this information complainant rushed towards house and started to search her at different places and during that enquiry he came to know that his daughter Mst. Tasleem had been abducted by Sultan Ali alongwith his companions namely Muhammad Younus, Manzoor Hussain, Aijaz, Mst. Malkani, Mst. Fatima and Shahbaz alias Kongi. Report was lodged against them under Section 11 of Zina Ordinance. Matter was investigated and case was challaned in court.

Charge was framed on 05.03.2003. Prosecution examined in all six witnesses. On the basis of evidence produced Sultan Ali and Shahbaz were convicted for life imprisonment with 10 whipping and a fine of Rs.1,000/- and in case of non-payment of fine to undergo one month, whereas the rest of the accused persons were acquitted from the charge.

It is argued by learned counsel for the appellant Sultan Ali that victim Mst. Tasleem at her own free will had gone with appellant Sultan Ali and had contracted marriage with him on 07.07.2000, in proof thereof Nikahnama has been placed on record. It is further contended that it is not a case of abduction because if it would had been so, no reason has been assigned by the victim that in spite of traveling from one place to another, as deposed by herself in her 164, Cr.P.C. statement, why she had not raised any hues and cries to attract the public and made a complaint of her abduction to rescue. No witness of alleged abduction has been produced by the complainant even the prosecution witnesses in their evidence have not been able to make out a case under Section 11 of Zina Ordinance. So far as the appellant Shahbaz is concerned, it is argued by Mr. Anwar Ali Shah, that no specific role in the commission of offence has been alleged against this appellant, it is a case of hearsay evidence, at the time of incident this appellant was minor and this case should have been considered on the basis of juvenile justice system.

In order to scrutinize the case against both these appellants, I have gone through the statements of prosecution witnesses. According to complainant, on 06.07.2000 at about 10:00 a.m. he received information about missing of his daughter Mst. Tasleem. After receiving information he came to his house and went to police station and got registered FIR. From the contents of his statement on oath it appears that just after receiving information, he had reported the matter but the facts are different to it. After delay of about 5 days the FIR was lodged on 11.07.2000, delay has been explained in terms that during the period complainant at his own was trying to search out the victim and during that enquiry or investigation made by him he came to know that accused persons nominated in the FIR had abducted his daughter. He also gain knowledge of abduction of his daughter by the persons nominated in the FIR through children of mohallah but none of the child from whom he received information has been produced in court to corroborate his evidence. On the contrary he has admitted that Mst. Tasleem had married with appellant Sultan Ali.

The next whiteness Mst. Tasleem in her statement on oath had specifically named both these appellants Sultan Ali and Shahbaz as the persons, who had kidnapped her. She had deposed that both these persons had taken her to Punjab where accused Sultan Ali forcibly committed zina with her. She remained with accused for about three months and once when she had fallen ill, she was brought to city Bhalwal, Punjab, where incidentally she made with her maternal uncle, who saved her from the clutches of the appellants. It is thereafter she was brought before the Magistrate for recording her 164, Cr.P.C. statement. She had simply nominated two persons Sultan Ali and Shahbaz, whereas exonerated rest of the accused persons. The defence plea taken by learned counsel for appellants that her father with mala fide intention had detained her at his house and attempted to grab an amount of Rs.2,00,000/- from the appellants on the basis of non-registration of FIR against them. 164, Cr.P.C. statement of the victim has been placed on record by S.I. Faraz Gul Abbasi. From perusal of 164, Cr.P.C. statement of victim it appears that besides narrating the fact of her abduction it is not disputed that just after abducting her she was shifted from one place to another and as appears from her 164, Cr.P.C. statement no precautionary measures to hide the victim from public in general or to protect her face with them was ever made by the appellants or his alleged companions. All the times she without any obstruction or fear was traveling with the appellants and admittedly had not raised any hues and cries and in spite of having an opportunity when most of the times she was present in public areas like bus stands, police stations, hospital and while traveling in buses and trains. To say that victim was under constraint threats of the appellants, except complainant’s statement does not appear on the record, even if it is taken that she was under constraint threats then also all the times it cannot be taken because if a person is kept in custody against his or her wishes and will he or she tries to have a chance for her or his release to made with the people and informs him whenever such facility is found available to him or her but in the present case in spite of ample opportunities nothing is on the record except the statement of complainant that she was under constraint threats that she ever attempted to get herself free from the clutches of the appellants. Victim’s maternal uncle, who incidentally met the victim in city Bhalwal, Punjab where from victim came to her house has also not been produced to support the prosecution version of her recovery through her maternal uncle. Even the mother of victim through whom complainant Muhammad Bashir came to know of missing of his daughter has not been produced in court what to say of any other eye witness of the incident. Although in medical report of victim Mst. Tasleem she has been shown to be virgo intacta but at the same time Nikahnama as produced by appellant Sultan Ali has also not been rebutted by Mst. Tasleem from which it appears that just after coming out of her house, she contracted marriage with Sultan Ali, the appellant, on the next date, which too has been admitted by the victim’s father, the complainant. It is also pertinent to note that the medical officers, who examined both victims and the appellant Sultan Ali have not been produced in court to confirm the contents of medico legal certificate. Though being a public document with no specific denial of the contents of the same are to be taken as correct and thus in the light of Nikahnama already executed in between the victim and Sultan Ali on 07.07.2002 no specific denial by victim on the contrary admitted by the complainant, I find that no case has been made out against this appellant Sultan Ali under Section 11 of Zina Ordinance.

So far as the appellant Shahbaz is concerned, except to be in company with Sultan Ali no overt act has been attributed against him under Section 11 of the Zina Ordinance, no complainant of Mst. Tasleem, the victim has been on record against him.

Hence in view of foregoing reasons, I find no sufficient ground for maintaining the impugned judgment and the same is hereby set aside and both the appellants are acquitted from the charge. They may be released forthwith if no required in any other custody matter.

Karachi,

Dated: J U D G E