P L D 1989 Federal Shariat Court 70 (PLP)

MUFTAKHIRUDDIN, J.‑‑The State being dissatisfied with the order of acquittal dated 8‑2‑1989 passed by the learned Additional Sessions Judge Sargodha whereby Lal Masih son of Inayat Masih, a Christain and Mst. Mumtaz Bibi wife of Muhammad Riaz caste Arain both residents of Chak No.114/N.B District Sargodha, have been acquitted of the offence punishable under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. A written complaint was lodged by one Muhammad Riaz at Police Station Silanwali District Sargodha on 30‑9‑1987 wherein it was alleged that Mst. Mukhtar sister of respondent Lal Masih lived in front of his house and was on visiting terms with his wife Mst. Mumtaz Bibi. This provided opportunity to Lal Masih to developed illicit relationship with Mst. Mumtaz Bibi. The relationship became known. Complainant tried to bring his wife on the right path and dissuaded Mst. Mukhtar Bibi to visit his house. However, on 22‑9‑1987 when the complainant went away from the house Mst. Mumtaz Bibi went to the house of Lal Masih and also took alongwith her the golden ornaments weighing four colas, eight pairs of clothes and Rs.2,500 in cash. She‑was seen in the tonga of Lal Masih by Muhammad Ashraf and Manzoor and on their enquiry told them that she was going to take medicine. Lal Masih is a tangaban. It was further alleged that Lal Masih detained Mst. Mumtaz Bibi in his house and did not allow her to come back to the complainant. Mst. Mumtaz Bibi had left the house in order to .commit Zina with Lal Masih. The F.I.R. was registered by the police and on 20‑10‑1987 Mst. Mumtaz Bibi joined the investigation. She was got medically examined by Lady Dr. Arifa Javed (P.W.) who found that the hymen of Mst. Mumtaz Bibi was torn, admitted two fingers, vaginal swabs were sent to the Chemical Examiner for detection of semen. According to report of the Chemical Examiner (Ex. PF) swabs were found stained with semen.

3. At the trial the prosecution examined eight witnesses. They are P.W.1 (Dr. Zafar Chaudhry), who had medically examined Lal Masih accused for potency. P.W.2 (Muhammad Riaz) is the complainant. He is not an eye‑witness. P.W.3 (Muhammad Boota) testified that once he had seen the accused persons going out of a sugarcane field. Mst. Mumtaz Bibi was tightening the string of her shalwar and on enquiry had admitted that they had committed Zina with each other and had tendered apology. P.W.4 (Manzoor Ahmad) deposed that he had seen the accused Mst. Mumtaz Bibi alongwith Mst. Mukhtar Bibi sister of Lal Masih on the tonga. Lal Masih is a tonge driver. P. W.5 (Khuda Yar‑S. I is the investigating officer in this case). P. W.6 (Shaukat Hayat) is a formal witness who had recorded the F.I.R. P.W.7 (Lady Dr. Arifa Javed) who examined Mst. Mumtaz Bibi and P.W.8 (Nazir Badshah) who had handled the sealed parcel containing swabs for its delivery to the Chemical Examiner Rawalpindi.

4. Mst. Mumtaz Bibi in her statement recorded under Section 342, Cr.P.C. denied that she was ever abducted and anybody had committed Zina with her. Regarding the report of the Chemical Examiner she stated that the police and her husband Muhammad Riaz had brought her from the house of her father and at Police Station Sargodha, there her husband had compromised with her parents. She, therefore, went to the house of her husband where she stayed up to 22‑10‑1987. Her husband cohabited with her during this period. She also made statement on oath to the same effect. Lal Masih took the plea that he was involved because of enmity.

5. The trial Court held that no abduction has been made and there is no evidence about the employment of any deceitful means. Regarding the charge under section 10(2) of the said Ordinance the trial Court has demonstrated the deliberate improvement made by the complainant and the prosecution witnesses, besides it was found that Manzoor (P.W.4) is the brother of the complainant. P.W. Muhammad Boota was found not a truthful witness. P.W.4 being closely related to the complainant was not found worthy of reliance in the case. The Court found the plea of Mst. Mumtaz Bibi plausible. The evidence produced by the prosecution was not found sufficient to sustain the conviction.

6. It is an established 'principle of law that in an appeal from acquittal the accused starts with the double presumption in his favour. Firstly there is the rule that it is for the prosecution to make out their case and until they do so beyond all reasonable doubt, the accused must be presumed to be innocent and secondly that the accused having succeeded in securing an acquittal from Court, superior Court will not interfere until the that the inference of guilt is irresistible and the in the judgment are clear and the evidence more is available. There is no direct evidence of Zina and the inducement for the offence as alleged are found lacking in this case.

7. We have gone through the entire record submitted by the learned Assistant Advocate‑General Punjab. It is not believable that a Muslim woman can be detained in the same village by a non‑Muslim and persons could not rescue her. The long delay in approaching the police as has been shown in this case by the complainant speaks for itself. The interference in such circumstances is not warranted in law. We are of the considered view that it could not be justified to summon the‑accused/respondent once again to face the agony of re‑trial second time before us. The appeal has no force and is dismissed in limine. N.H.Q./478/FSC Appeal dismissed.