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Petitioner: JODDAT KAMRAN and others VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Salahuddin Mirza, Dr. Allama Fida Muhammad Khan Title: JODDAT KAMRAN and others vs THE STATE Case No.: Criminal Appeals Nos.80/I and 94/I of 2006 Date of Judgment:2007-04-23 Reported As: 2008 P Cr. L J 92 Result: Appeal accepted
JUDGMENT
JUDGMENT ' SALAHUDDIN MIRZA, J.--- These appeals are directed against the same judgment, dated 18th March, 2006 whereunder, out of the 14 accused sent up for trial, eleven were convicted and three were acquitted and a proclaimed offender Muhammad Shafi was also acquitted by the learned Additional Sessions Judge, Rajanpur Mr. Malik Muhammad Nawaz Samtiah. All these appeals which are filed by the eleven appellants are being disposed off by this judgment. A summary of the convictions is given below:-- 2(a) Appellant Aqeel is convicted under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 25 years' rigorous imprisonment and fine of Rs,50,000 or six months' S.I. In lieu of fine. Appellant Aqeel is also convicted under sections 420/466/468/471, P.P.C. And sentenced to seven years' R.I. And fine of Rs,20,000 or simple imprisonment for the three months in default of payment of fine. (b) Appellants Allahwasaya, Elahi Bux, and Ghulam Akbar were convicted under section 11 of the Zina Ordinance and sentenced to 25 years' R.I. They are also convicted under sections 420/466/468/471, P.P.C. And sentenced to 7 years' R.I. And fine of Rs,20,000 or S.I. For three months in default of payment of fine. (c) Appellants Allah Ditta, Ghulam Akbar, Mukhtar Ahmad, Iqbal, Ismaeel, Jodat Kamran and Ajmal were convicted under sections 420/ 466/468/471, P.P.C. And sentenced to seven years' R.I. And fine of Rs,20,000 or three months' S.I. In default of payment of fine. (d) All the sentences are to run concurrently and benefit of section 382-B, Cr.P.C. Was also allowed to the appellants.
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3. The basis of the prosecution case is F.I.R. No,14 of 2001 lodged by complainant Javed Aslam at Police Station City, Rajanpur, on 21-1-2001 at 1945 hours, Javed Aslam reported that his family consisted of two brother, including himself, and two unmarried sisters, Mst. Asiya aged 15 years and Mst. Naddia aged 14 years and they went to bed as usual on the night of 19 January but when he woke up in the morning of 20th January, 2001 he found that Mst. Asiya was missing from the house and he immediately left his house to search her and met his relatives Jameel and Ghulam Nabi, both brothers and sons of Beer Ali, who informed him that they had seen Mst. Asiya in the company of appellants Aqeel, Elahi Bux and Allahwasaya who were all going (presumably on foot) towards the public road on which a red-coloured "Dala" No,889-011/Karachi was parked, that they chased them but could not succeed in catching up with them who all escaped in the said `Dala'. The complainant further stated that Allahwasaya was his neighbour and Aqeel was his (Allahwaya's) relative and he often used to visit Allahwasaya and, in the course of his visit to the house of Allahwasaya, Aqeel had developed illicit relations with Mst. Asiya and had now abducted Mst. Asiya for immoral purposes. (The complainant, however, did not disclose the name or age of his brother who was part of the family nor he clarified why Jameel and Ghulam Nabi did not themselves come to inform him of what they had seen, nor he disclosed at what place; and how far away from his house and at what time did he meet Jameel and Ghulam Nabi nor did he disclose in what vehicle, if any, Jameel and Ghulam Nabi said they had chased the fleeing party or had chased them on foot). 4. In all the prosecution had sent up the following 14 (fourteen) accused persons for trial on various charges:-- (1) Aqeel son of Qadir Bakhsh, (2) Allahwasaya son of Jumma Khan, (3) Elahi Bux son of Bakhshan, (4) Ghulam Akbar son of Bakshan, (5) Ghulam Akhtar son of Muhammad Bakhsh, (6) Mukhtar Ahmad son of Muhammad Bakhsh, (7) Iqbal son of Allah Bakhsh, (8) Ismaeel son of Elahi Bakhsh, (9) Jodat Kamran son of Abdul Hayee, (10) Muhammad Ajmal son of Elahi Bakhsh, (11) Allah Ditta son of Ghulam Akbar, (12) Kundan Mai wife of Goram, (13) Faqir Bux son of Norang, (14) Zafar Iqbal son of Allah Wasaya.. 5. Out of these 14 persons, above noted last three were acquitted and the remaining 11 (eleven) were convicted and sentenced as per paras.2(a) to 2(d) above and are now the appellants in these two connected appeals. 6. The prosecution case, in brief, is that appellant Aqeel enticed away minor girl Mst. Asiya with the help of some of the co-accused, lived in adultery with her and then fabricated a Nikahnama with the help of the other co-accused purporting to show marriage between him and Mst. Asiya. Appellant Muhammad Ismaeel is the Nikahkhwaan, appellant. Jodat Kamran is the Nikah Registrar, appellant Ghulam Akbar is said to be the driver of the `Dala' used by Aqeel in the alleged commission of crime and the rest of the appellants/accused are either the witnesses of the Nikah or participants in the Nikah ceremony or related to the main accused Aqeel. The case of accused/appellant Aqeel, as revealed in his 342, Cr.P.C. Statement, is that Mst. Asiya is major, had gone with him of her free will and without the help of any of the co-accused and had married him on 15-10-2000, nearly three months before the lodging of the F.I.R. On 21-1-2001, with her free consent and in accordance with law and had even filed writ petitions, along with accused Aqeel, in the High Court to seek protection of law from the harassment caused to both of them due to the mala fide and false cases registered against them at the instance of complainant Javed Aslam and had even sought along with Aqeel, bail before arrest and had also appeared in the High Court in that connection on more than one occasion and had consistently supported Aqeel and her marriage with him and had lived with him for eight months until she was handed over to her brother, the complainant, after her arrest on 10-6-2001, after which she had been coerced into changing her instance. The rest of the accused also pleaded to the same effect. In his statement
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recorded under section 342, Cr.P.C. Appellant Ismail affirms that he had performed Nikah of Mst. Asiya with Aqeel after satisfying himself that Mst. Asiya was under no compulsion and was getting herself married of her free will. Appellant Jodat Kamran in his 342, Cr.P.C. Statement stated that he merely discharged his duty as Nikah Registrar when he registered the Nikah between Aqeel and Mst. Asiya and he had satisfied himself that Mst. Asiya had married Aqeel of her free consent. The rest of the appellants/accused stated in their 342, Cr.P.C. Statements that they had acted as Vakeel or witnesses of the Nikah or had participated in the Nikah and some of them even claimed that they had nothing to do with the Nikah in question and had been implicated merely because they were related to appellant Aqeel. 7. We have heard learned counsel for the appellants and learned State counsel and have gone through the evidence on record with their help. Learned counsel for the State does not support the impugned judgment. Charge of abduction and Zina-bil-Jabr 8. We shall first take up the charge of abduction under section 11 of the Ordinance, under which accused Aqeel, Allahwasaya, Elahi Bux and Ghulam Akbar have been convicted and the charge under section 10 under which appellant Aqeel alone has been convicted. 9. On the point of abduction, there are three witnesses ... P.W.2 complainant Javed Aslam, P.W.3 Ghulam Nabi and P.W.1 Mst. Asiya herself. So far as P.W.2 the complainant is concerned, he stated in the F.I.R. As well as in his deposition that he discovered the disappearance of his sister only in the morning and he later learnt from his relatives Jameel and Ghulam Nabi, whom he met when he went out in search of his sister, that she had been taken away by Aqeel, Allahwasaya and Elahi Bux. However, P.W.3 Ghulam Nabi says that he along with Muhammad Jameel was present on his land and saw Mst. Asiya Bibi being 'forcibly' abducted by Aqeel, Allah Wasaya and Elahi Bux in a Dala of red colour , and that he and Muhammad Jameel chased the Dala but could not catch up with it. It is however, impossible to believe this witness. According to complainant himself, Mst. Asiya had disappeared from the house during night and he discovered her absence when he woke up in the morning. If so, what Ghulam Nabi was doing in his land at the dead of night and what was the occasion for Muhammad Jameel to be at the land of Ghulam Nabi at that odd hour and how could he identify Mst. Asiya and her three companions in the darkness? He did not give the time when he saw Aqeel, Allahwasaya and Elahi Bux 'forcibly' abducting Mst. B Asiya. He also does not state whether he saw the act of abduction being committed when the accused were still on the ground and had not boarded the Dala or when the Dala was on the move. Besides, he states in his deposition that Mst. Asiya is his niece; if so, why, being uncle of Mst. Asiya, he did not rush to the house of complainant to inform him about the abduction of Mst. Asiya and kept the important news to himself until the complainant himself went out and found him. But, then, he also does not say that he and Jameel informed the complainant when the latter came searching for his daughter. The complainant did not disclose where, at what time and how far away from his house he met Ghulam Nabi nor Ghulam Nabi disclosed this crucial information. Moreover, Ghulam Nabi states that he and Jameel chased the `Dala' but' could not catch up with it. He however, did not disclose in what vehicle he chased the abductors and abductees nor he stated that he chased them on foot when they had still not boarded the `Dala'. He is vague throughout. Besides, while Ghulam Nabi could say that Mst. Asiya was going with Aqeel, Elahi Bux and Allahwasaya because he saw them together in the Dala (or on foot), how could he say that she was being forcibly taken away? And if he meant that he saw them while they were still walking on foot and going towards the Dala parked on the public road, dragging Mst. Asiya with them, the question arises as to why he and Muhammad Jameel did not succeed in freeing Mst. Asiya from their clutches. Ghulam Nabi was not alone but in the company of Jameel and if. Mst Asiya was being forcibly taken and being dragged and was resisting the attempt to forcibly abduct her, it was easy for Ghulam Nabi and
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Jameel to overtake and overpower them; how could the accused escape in such circumstances? Moreover, when the complainant said that Mst. Asiya had developed illicit relations with Aqeel, and had disappeared in the night and she disappeared so quietly that he could only discover her disappearance after waking up in the morning, the possibility of forcible abduction can be safely ruled out and, therefore, when Ghulam Nabi stated that he saw Mst. Asiya being forcibly taken away he was without doubt telling a brazen lie. We also note that Mst. Asiya herself states that she was sleeping with her younger sister when Aqeel and his companions trespassed into the room and awakened her and ordered her at gun point to keep quiet and go with them. The question arises as to how they could trespass into the room. The door must have been bolted from inside; and if it was not she did not say so nor explained why it was not so bolted. Moreover, her sister Mst. Nadiya was sleeping by her side and it is not possible to believe that she (Mst. Nadiya) did not awake inspite of the commotion that must have erupted when the three accused trespassed into the room and ordered Mst. Asiya at gun-point to keep quiet and then took her away by force. At any rate, Mst. Nadiya was the most natural eye-witness of the abduction but she was not examined by the prosecution and therefore, presumption must be drawn that had she been produced she would not have supported the prosecution case. 10. This brings us to the deposition of Mst. Asiya P.W.1, the alleged abductee and the so-called victim of the offence. While complainant Javed Aslam stated in the F.I.R., and also repeated this in his deposition as P.W.2, that accused Aqeel used to come to his relative Allahwasaya who was his (complainant's) neighbour and during the course of such visits he (Aqeel) had developed illicit relations with Mst. Asiya, Mst. Asiya herself says that on 18-1-2001 she was plucking vegetables in her land when accused Mst. Kundan Mai approached her and conveyed to her the message of accused Aqeel that she should start love affair with him (Aqeel) but she admonished Mst. Kundan Mai upon which Mst. Kundan Mai hurled threats that she would be taught a lesson. Besides the fact that this statement of Mst. Asiya negates what complainants stated in the F.I.R. As well as in his deposition as P.W.2 as regards the illicit relations between Mst. Asiya and Aqeel, this statement also propounds the strange theory that love affairs can be demanded under threats --- something which had never been heard of before. She then proceeds to say that very night (between 18 and 19 January) when she and her sister Mst. Nadiya were sleeping in the same room, though on separate cots, accused Aqeel, Allahwasaya and Elahi Bux, who were all armed with pistols, came at "Fajr prayer time, trespassed into her room, awoke her, threatened her to keep quiet and forcibly abducted her and also took away Rs,36,000 in cash and golden ornaments weighing 2 Tolas. Apart from the fact that such a large amount in cash is not expected to be kept in a cultivator's house, it is all the more interesting to note that such a large amount of money was not kept by the complainant himself in his safe custody but was lying in the room of two young girls. This is a highly improbable story. Besides, even if such a large cash was lying in her room, it is difficult to believe that Mst. Asiya should know the exact amount of the cash which, without any doubt, did not belong to her but to her brother, the complainant, or her father. She further stated that hue and cry having been raised by, Ghulam Nabi and Jameel rushed to the spot, tried to stop the Dala but could not stop it. The question is 'if she could raise hue and cry when she was already taken outside her house, what prevented her from raising hue and cry when she was woken up in her room?' She then stated that she was first taken to the house of accused Aqeel in Mouza Asni where acquitted accused Faqir Bux and Zafar were already present and where she was kept for a month during which accused Aqeel committed Zina-bil-Jabr with her; thereafter she was taken by accused Aqeel, Allahwasaya, Elahi Bux, Akbar, Faqir Bux and Zafar to the house of a Police Officer, in D.G. Khan where Ajmal, Ismaeel, Allah Ditta, Iqbal, Akhtar, Mukhtar and Shafi Ghadar were already present and there, accused Ismaeel was sent to bring a blank form of Nikahnama and later, Ismaeel himself filled in the form of Nikahnama. She denied that she had contracted marriage with
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accused Aqeel with her free will and consent but, nevertheless, her signatures (the Nikahnama also bears her thumb-impression) were forcibly taken on the Nikahnama and that she was kept in the house of the said Police Officer for 3-4 days and then she was taken to Multan where she was kept for two and a half months. She then said that during her 2-1/2 months stay at Multan she was taken to an Advocate but she insisted that she had not instituted any Court proceedings in any Court nor appeared in any Court but she added that 'all this was done by the accused persons'. Thereafter, she said that she was taken back to the house of Aqeel (in Mouza Asni?) and was kept there for 3-4 days and then she was taken by a taxi to Dera Ghazi Khan --- this time by accused Aqeel, Zafar, and Faqir Bux, but on the way of Dera Ghazi Khan, when they were still at the bus stand of Fazilpur, they stopped the taxi car there and she was taken out of the taxi and made to stand 'aside', along with accused Aqeel, and Zafar and Faqir Bux went to take some money from some person (in Fazilpur) and when she was thus 'standing aside' a police party along with her father and uncle Abdul Majeed appeared on the scene and she and Aqeel were arrested. She does not give the name of the Police Officer at whose house she was kept at D.G. Khan and where the Nikahnama was allegedly forged and fabricated. Even though she said that she had raised hue and cry as soon as she was taken out of the house after her abduction and had attracted her uncles Ghulam Nabi and Muhammad Jameel, she does not explain why she did not raise any hue and cry during the next so many months when she was taken from place to place in various modes of vehicles, and even when she and Aqeel stood by the road side at bus stand of Fazilpur. In the end, she conceded in cross-examination that her Nikah with accused Aqeel was performed on 15-10-2000 but added it was performed without her consent. Evidently, she had forgotten by now that in the very first line of the examination-in-chief she had stated that she had been abducted in the morning of 21 January, 2001. 11. Exh.P./1 is the Parat of Nikahnama. It shows that the marriage of Mst. Asiya was solemnized on 15- 10-2000. Mst. Asiya admits to the execution of Nikahnama although she also says that it was executed without her consent. Accused Ismaeel also says that he was the Nikahkhwaan and he had performed the Nikah of Mst. Asiya and Aqeel after satisfying himself that Mst. Asiya was willingly getting herself married. Accused Iqbal, Zafar Iqbal, Allah Ditta, Ghulam Akhtar, Mukhtar Ahmad and Muhammad Ajmal are the persons who are the witnesses of Nikah and participants in the Nikah ceremony. Accused Aqeel has also brought on record some copies of Court proceedings. Exh.D.E. Is copy of the order, dated 23-2-2001 passed by the Bahawalpur Bench of Lahore High Court in Criminal Miscellaneous No,489/B of 2001. This is an application through which Mst. Asiya and Aqeel had sought bail before arrest in respect of Crime No,14 of 2001 recorded on 21-1-2001. This is the same F.I.R. Which was lodged by complainant Javed Aslam under which the appellants were challaned and convicted. Vide order, dated 23-2-2001 Mst. Asiya and accused Aqeel were granted pre-arrest bail till 28-2-2001 with the direction that they should avail legal remedy before the lower forum within this period. Exh.D.B. Is copy of the Writ Petition No,1874 of 2001 instituted by Mst. Asiya and accused Aqeel on 27-2-2001 (the last but one day till when the pre-arrest bail was effective) for the quashment of the same F.I.R. No,14 of 2001 on the ground that there was no abduction and that they had been lawfully married to each other with the free consent of Mst. Asiya and the F.I.R. Had been filed by Javed Aslam, the brother of Mst. Asiya on wholly concocted grounds because she had married without the consent of her family. Complainant Javed Aslam was made respondent No,3 in the Writ Petition Exh.D.B./1 is order dated 13-3-2001 passed by the Multan Bench of Lahore High Court on this writ petition which shows that at first the Court had ordered issuance of notice to the respondents but while the order was still being dictated Mr. Tahir Mahmood, Advocate entered appearance notice on behalf of respondent No,3 (that is, complainant Javed Aslam of this case) and accepted notice on behalf of respondent No,3 whereas respondent No,2 (the S.H.O. Who had recorded the F.I.R.) was asked to submit comments. Mst. Asiya
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and accused Aqeel move yet another Criminal Miscellaneous No,752/B of 2001 (Exh.D.D.) before the Bahawalpur Bench of Lahore High Court in which order was passed on 28-3-2001 whereunder pre- arrest bail was granted to them till 2-4-2001 by which time they ,were directed to move the Court of first instance for seeking bail. During all these proceedings, specially criminal miscellaneous applications for seeking pre-arrest bail, Mst. Asiya, who was petitioner/applicant No,1 in all these proceedings must have personally appeared before the various Court; otherwise, ad interim relief in the form of pre-arrest bail even for the limited time would not have been given to her. Thus, she had more than ample opportunity to raise hue and cry and complain that she had been abducted by Aqeel, who must also have been present in the Court during the hearing of these writ petitions and criminal miscellaneous petition in which case she would surely have been relieved of her captivity at the hands of Aqeel and others. However, she did nothing of the sort. And now she has the cheek to say, while appearing in the Court as P.W.1, that she had never instituted any legal proceedings in any Court. Under these circumstances, who is to be believe --- the honourable Judges of Multan and Bahawalpur Benches of the Lahore High Court or Mst. Asiya who has already been earlier proved to be a liar who had perjured herself? In this regards, learned counsel for the appellants has referred us to the judgment reported as Nazeer Ahmad and others v. The State PLD 1986 FSC 162 in which it is held by this Court that when a girl is taken from place to place and kept in Abadi but still raises no hue and cry and keeps quiet, it means that she had gone with the accused with her free will and charge of abduction is, therefore, not established. 12. Besides, it is pertinent to note that P.W.10 Bashir Ahmad A.S.-I. Had arrested accused Aqeel and Mst. Asiya from bus stand of Fazilpur on 10-6-2006 (although, as far as Mst. Asiya is concerned, he says that she was 'recovered'). He says that both of them were standing by the side of the road when he arrested one and 'recovered' the other and he further stated that the statement of Mst. Asiya was then recorded and she did not involve any accused persons, that is to say, she did not allege in her statement that the accused persons were involved in her abduction or in forging the Nikahnama. Another Police Officer, C.W.1 Syed Zahid Hussain Shah, Inspector, stated that he posted as S.H.O. Of Police Station City, Rajanpur, when on 26-2-2001 at about 1930 hours Mst. Asiya and Aqeel appeared before him in connection with the investigation of this case and he recorded their statements after informing them that he was the S.H.O. Of the police station and Aqeel also produced a copy of the Nikahnama (of his marriage with Mst. Asiya) which was attested by the Chief Officer of D.G. Khan Municipality and he also produced copy of a writ petition in connection with their protective bail (evidently, the S.H.O. Was referring to the Criminal Miscellaneous No,489/B of 2001). C.W.1 Syed Zahid Hussain Shah further stated that Mst. Asiya complained that her father had earlier married her to Aqeel but Rukhsati could not take place and later her father wanted to marry her to an old man instead of performing her Rukhsati with Aqeel and she also stated that she had married Aqeel and was performing marital obligations as his wife and was living with Aqeel with her free will and that none of the accused persons had abducted her. The S.H.O. Further stated that Mst. Asiya had recorded her statement with her free consent and without any external pressure. 13. The evidence of P.W.10 Bashir Hussain, A.S.-I. And of C.W.1 Syed Zahid Hussain Shah, Inspector, as narrated in the previous paragraph, clearly shows that after obtaining bail before arrest from the High Court, accused Aqeel and Mst. Asiya appeared before the then S.H.O. Of Police Station City, Rajanpur, on 26-2-2001 at their own accord to participate in the investigation and Mst. Asiya clearly described herself as the wife of Aqeel and affirmed to her marriage with Aqeel with her free consent and absolved all the accused from the charge of abducting her or of forging a bogus Nikahnama and even made allegations against her father that inspite of marrying her with Aqeel some long time ago he not only was reluctant to effect her Rukhsati but even attempted to marry her a new to an old man. This clearly shows that on 26-2-2001 and, even at the time of her arrest
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along with Aqeel on 10-6-2001, she debunked the allegation of abduction against all the accused and of Zina-bil-Jabr against accused Aqeel and did not involve any of the accused in her alleged abduction or rape. 14. Moreover, by admitting that she was married to Aqeel and Nikahnama Exh.P.1 was executed, albeit under coercion and without her consent and free will, she gives a lie to the entire prosecution case, as per the F.I.R. And the evidence of the prosecution witnesses, that she had been abducted during the night between 19 and 20 January, 2001 as the Nikah was performed (under duress and without her consent, according to her) three months prior thereto, namely, on 15-10-2000 which means that she…
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