1994 P Cr (PLP)

NAZIR AHMAD BHATTI, J.

Sh. Muhammad Anwar and Mst. Bushra wife of complainant Maqbool Ahmad were convicted by the Additional Sessions Judge, Lahore under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and each of them was sentenced to undergo rigorous imprisonment for 5 years, to suffer 30 stripes and to pay a fine of Rs.10,000 or in default to further undergo rigorous imprisonment for one year by judgment dated 11-2-1993. Both the convicts have challenged their conviction and sentence by the appeal in hand. Complainant Maqbool Ahmad also filed a Criminal Revision Petition No.22/L of 1993 for enhancement of the sentence. Judgement in the appeal in hand will also dispose of the aforesaid revision petition.

2. Complainant Maqbool Ahmad, husband of appellant Mst. Bushra, resident of village Dhair, Shahdara Town, District Lahore bad gone to Faisalabad. He returned to his house on 13-12-1991. His son Muhammad Qasim informed him that on 9-12-1991 at about 11-00 in the night he got up to urinate and lighted the bulb and saw both the appellants committing Zina. The son called his uncle who came running inside the room and saw both of them in compromising position and due to shame sat on the ground, and in the meantime both culprits ran out. The complainant submitted a written complaint in Police Station Shahdara Town, Lahore on 13-12-1991 at 7-00 in the night.

3. After investigation both the appellants were sent up for trial before the learned Additional Sessions Judge, Lahore who charged both of them under section 10 of the Hudood Ordinance, to which each of them pleaded not guilty and claimed trial.

4. Appellant Mst. Bushra was examined by P.W.6 Lady Dr. Robina Awan on 14-12-1991 and her vaginal swabs taken by the lady doctor were found stained with semen by the Chemical Examiner.

5. Muhammad Qasim, son of the complainant and appellant Mst. Bushra, and Maqsood Ahmad, brother of the complainant, are eye witnesses of the occurrence. Muhammad Qasim, appearing as P.W.2, made the same deposition as he had narrated to his father. He had stated that he had seen both the accused naked and they were committing Zina with each other and they got separated and caught their Shalwars when he called his uncle. Maqsood Ahmad, brother of the complainant, appearing as P.W.3, had stated that he was woken up by the call of his nephew and ran towards him where he saw Mst. Bushra and Sh. Muhammad Anwar appellants present in the courtyard and had just got up after committing Zina, and they both were naked. He further stated that he sat on the ground and caught his head out of shame and in the meantime the appellants jumped over the wall and ran away.

6. Some other circumstances had also been disclosed in the evidence. It had come in the evidence that appellant Mst. Bushra did not belong to the family of the complainant and he had married her many years ago against the will of his family, that the complainant contracted a second marriage with Mst. Anwar Bibi about 4/5 years ago, that the second wife belonged to his family and all the family members had agreed to this marriage except appellant Mst. Bushra who had opposed it. It had also come in the evidence that the alleged occurrence was also narrated to the father of the complainant but he did not express any feelings nor gave it any importance. It had also come in the evidence that appellant Mst. Bushra was given some money by her brothers out of sale of a house which was being demanded by the complainant from her. It had also come in the evidence that a son of the complainant other than P.W.2 Muhammad Qasim, was employed by appellant Sh. Muhammad Anwar and the latter was on visiting terms with the family and also used to take his meals there. It shall thus be seen that there was a lot of bad blood between the complainant and appellant Mst. Bushra who was his first wife. The eye-witnesses had stated during the trial that there was a Khuda made for poultry adjacent to the wall and by climbing that both the appellants had fled out of the house. However, this Khuda was not mentioned in the F.I.R. and when one Police Officer visited the house he saw that it had been newly constructed.

7. Both the appellants had denied the commission of the offence. Appellant Mst. Bushra had stated that appellant Sh. Muhammad Anwar was like a father to her and the latter had stated that appellant Mst. Bushra was like a daughter to him. Both the appellants, besides their statements under section 342, Cr.P.C. also made deposition on oath and produced 8 witnesses in defence. Out of the defence witnesses there were some Police Officers who had reinvestigated the matter and had found the allegation made by the complainant as incorrect. The introduction of the circumstance of Khuda was found to be an afterthought by one Police Officer who had appeared in defence as he had found it constructed after the occurrence.

8. Much stress was laid on the factum that her real son had made a deposition against appellant Mst. Bushra and had charged her for adultery. However, this does not mean that his testimony should be taken as gospel truth. It is a fact that there was friction between the husband and the wife due to second marriage of the husband and appellant Mst. Bushra was living in a separate house. While their children were in favour of the father and were happy over his second marriage. In the circumstances it would be natural for the son to take sides with the father. The conduct of the parents of the complainant who did not show any visible reaction about the occurrence is also very significant. In the context it' may be observed that Muhammad Oasim had raised alarm which attracted only his uncle whereas the parents and other children of the E complainant were also present in the same house but none of them came to the spot. There was also a delay of 4 days in making the report of the occurrence in the police station. This would also prove the weakness of the prosecution allegation. Appellant Mst. Bushra being a married woman, the presence of semen in her vagina would not prove her guilt in the absence of any other positive evidence.

9. For the aforesaid reasons we have come to the conclusion that the State had failed to prove the guilt of both the appellants beyond reasonable doubt and the benefit of it must go to both the appellants. Consequently the appeal is accepted. The conviction and sentence of both the appellants recorded on 11-2-1993 by the learned Additional Sessions Judge, Lahore are set aside and they are acquitted of the offence for which they were C convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case.

10. As a consequence of acceptance of the appeal the Revision Petition No.22/L of 1993 is dismissed. N.H.Q./845/FSC Appeal accepted.