PLJ 2010 Sh.C.
(AJ&K) 123
Present:
Iftikhar Hussain Butt & Syed Hussain Mazhar Kaleem, JJ.
Mst. RAHILA
KOUSAR--Appellant
versus
MUHAMMAD ZAMEER
and anothers--Respondents
Crl. Appeal No.
55 of 2008, decided on 24.2.2010.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
249-A--Offence of Zina (Enforcement of Hadd) Act, 1985, Ss. 10 &
16--Allegation of committing the offence was not proved--Neither was seduced
nor was abducted--Contracted marriage with her free will--Nikah Nama was
available--Accused was acquitted of the charge by trial Court--Challenge to--No
other evidence on record establishing a prima facie case against respondent for
committing the alleged offences--Section 249-A, Cr.P.C. was attracted--Trial
Court did not commit any error while acquitting the accused--Impugned judgment
being correct and in accordance with law supported by strong and cogent
reasons--Appeal was dismissed. [P. 125] A
& B
Mr. Muhammad
Younas Arvi, Advocate for Appellant.
Additional
Advocate General for State.
Ch. Jahandad
Khan, Advocate for Respondent No. 1.
Date of hearing:
24.2.2010.
Judgment
Syed Hussain
Mazhar Kaleem, J.--Above titled appeal has been directed against the judgment
of Tehsil Court of Criminal Jurisdiction, Mirpur dated 30-08-2008, whereby
Respondent No. 1 was acquitted of the charge.
2. Brief facts forming background of the appeal
are that a case under Sections 10, 16 of the Offence of `Zina' (Enforcement of
Hadd) Act, 1985 and S. 109, A.P.C was registered at Police Station, Chaksawari
on the complaint of Muhammad Shaban. It was reported that complainant's sister
disappeared from home on the night falling between 28/29-06-2007. He tried to
trace her and came to know that Muhammad Zameer s/o Muhammad Shabbir seduced
the victim and abducted her for committing `Zina'. Muhammad Yasir, Badar Munir,
Manzoor Hussain and two unknown persons were also alleged for committing the
alleged offences.
3. After completion of investigation, challan
was submitted before Tehsil Court of Criminal Jurisdiction, Mirpur. During
trial, the respondent moved an application under Section 249-A, Cr.P.C. which
was allowed and he was acquitted of the charge through the impugned judgment,
hence this appeal.
4. Learned Counsel for the appellant and
Assistant Advocate General argued that the respondent was nominated in promptly
lodged F.I.R, he was alleged for seducing, abducting
and committing `Zina'. A strong case for the offences under Sections 10,16 of the Offence of `Zina' (Enforcement of Hadd) Act, 1985
and S. 109, A.P.C existed on record against him. The allegations were supported
by medico legal and that of chemical examiner's report. Abduction was also
established, there was sufficient proof on record that the respondent committed
`Zina' with the appellant and later on forced her to sign a forged `Nikah'
Nama. The statement of abductee attached with appeal was sufficient to prove
his guilt. It was a fit case for conviction, atleast after framing charge there
was no justifiable reason for the trial Court to exercise powers under Section
249-A, Cr.P.C. and dismiss the case before examination of the prosecution
witnesses. A strong prima facie case connecting the respondent with the offence
existed on record, thus the impugned judgment being incorrect, erroneous and
against the facts of the case is not maintainable, therefore, the same may be
set aside and the case be remanded to the trial Court for deciding the same in
accordance with law.
5. On the other hand, it was argued that the
respondent contracted marriage with the appellant, copy of `Nikah' Nama was
placed on record, thus the allegation of seducing, abducting and committing.
`Zina' was baseless. In fact after marriage brother of the appellant concocted
a story and roped the
respondent in a false case. There was no eye-witness of the
occurrence to establish that she was seduced or abducted by the appellant.
Medical report was also not supportive to the prosecution version and there was
nothing on record to establish that the respondent committed the alleged
offence. In presence of peculiar circumstances, examination of the prosecution
witnesses was not required as there was no likelihood of the conviction of the
respondent, thus, the trial Court rightly exercised powers under Section 249-A,
Cr.P.C. The impugned judgment being correct and in accordance with law needs no
interference, therefore, the appeal may be dismissed.
6. We have heard the learned Counsel for the
parties and gone through the record of the case.
7. It may be mentioned here that sister of the
complainant disappeared from home on the night falling between 28/29 June, 2007
but the matter was reported to the Police on 05-07-2007, and the case was
registered on 06-07-2007. No reasonable explanation regarding delay in lodging
the F.I.R was given by the complainant. It is interesting to note that
incomplete challan was presented against the respondent on 22-11-2007. Later on
a report under Section 173, Cr.P.C. dated 27-12-2007 showing that appellant and
the respondent contracted marriage and allegation of committing the alleged
offences was not proved, was submitted and it was
suggested that the case may be dismissed for want of proof. Being dissatisfied
with the aforesaid proceedings the complainant requested for fresh
investigation, upon which Additional Superintendent Police inquired into the
matter and arrived at conclusion that the appellant left the house, according
to her free will, however, without giving any reason submitted the challan on
25-04-2008 against Muhammad Zameer and Yasir Shahzad.
8. The aforesaid facts clearly indicate that the
appellant neither was seduced nor was abducted; she contracted marriage with
the respondent according to her free will. Original copy of `Nikah' Nama was
also available on the trial Court's file. Even the statement of appellant
attached with the appeal though was not a part of the trial Court's file,
however, supports the aforesaid proposition and confirms that she singed
`Nikah' Nama, thus negates the version given by the complainant. It may also be
mentioned here that there was no other evidence on records establishing a prima
facie case against the respondent for committing the alleged offences, thus
Section 249-A, Cr.P.C was attracted and in the circumstances examination of the
prosecution witnesses cited in the challan was not required as there was no
likelihood of conviction of the respondent.
9. For the facts listed above, we are of the
opinion that the trial Court did not commit any error while acquitting the,
respondent. The impugned judgment being correct and in accordance with law
supported on strong and cogent reasons, warrants no interference, therefore,
the appeal merits no consideration and it is hereby dismissed.
(A.S.) Appeal dismissed.
