1988 PLP 1588 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to re‑examine the entire evidence with a view to determine the correctness of the judgment of the Federal Shariat Court dated the 18th of March, 1986 whereby the conviction and sentence of the appellant under p section 302, P.P.C. and section 11 of the Offence of Zina (Enforcement of Hudood Ordinance), 1979 (hereinafter referred to as the Ordinance), r was maintained. The prosecution case was that in the month of June 1982 Allah Dewaya, appellant, had enticed away Mst. Razia and had lodged her with his bosom friend Muhammad Afzal, deceased. Contrary to the understanding between the two, Muhammad Afzal had on obtaining Rs.20,000 from the father of the aforesaid Mst.Razia, allowed her to go with her father. This had greatly annoyed Allah Dewaya. On the night of 9/10 of July, 1982, Allah Dewaya alongwith nineteen of his associates, all fully armed, came to the house of Muhammad Afzal at Chah Noor Wala, Police Station Mehmood Kot, District Muzaffargarh. Allah Dewaya was armed with a pistol and he alongwith Allah Ditta, Sultan and Ghulam Haider entered the house, demanded from Afzal Mst.Razia and on being denied fired at Muhammad .4fzal and killed him and took away two of his relatives, namely, Mst.Lal Mai (P.W.20), the wife of Muhammad Afzal, deceased, and Mst.Naziran (P.W.10), and committed Zina with them till they were recovered from their custody, Mst.Lal Mai on 12‑7‑1982 and Mst.Naziran on 17‑7‑1982. Lai (P.W.1) went to the police station and lodged the report about the occurrence at 8 a.m. on 10‑7‑1982. Talib Hussain, S.I. (P.W.30) after recording the First Information Report, took up the investigation of the case and after attending to the dead body, recovered one .12 bore empty and three .32 bore empties and a revolver from the spot. He got the two ladies NIst. Lal Mai and Mst.Naziran medically examined after their recovery. Allah Dewaya was arrested on 19‑7‑1982 when Mst.Naziran was recovered from his custody on the same day and a .12 bore pistol alongwith two live cartridges was also recovered from his possession. The autopsy of Muhammad Afzal showed one inlet charred fire‑arm wound, four incised wounds, one contusion and a fractured little finger. In the occurrence Imam Bakhsh (P.W.2) and Muhammad Rashid (not produced) were also injured. Imam Bakhsh (P.W.2) had received eight injuries of which only one was grievous. Muhammad Rashid had a grievous fire‑arm injury. Lady Dr.Firdous Ara (P.W.24) examined Mst.Lal Mai (P.W.20) a married woman. She was found to be an old case of habitual sexual intercourse with no marks of violence on any part of her body. Lady Dr.Zubaida Riaz (P.W.25) examined Mst.Naziran on 27‑7‑1982 and found no marks of injury on her person. The vaginal swabs showed presence of semen. She was already a married lady. After the investigation, Allah Dewaya alongwith nineteen others was sent up for trial. Most of the witnesses produced at the trial resiled from their statements or were declared hostile. The appellant and his co‑associates denied their participation in the occurrence or involvement in it and they all stated that they were falsely implicated in the case. The trial Court considered Mst.Naziran (P.W.10) and Mst.Lal Mai (P.W.20) who were inmates of the house as natural witnesses of the occurrence and on their statements, the appellant and Wahid Bakhsh alone were convicted. Allah Dewaya was convicted under section 302/34, P.P.C. for the murder of Muhammad Afzal and both of them were convicted under section 10(3) of the Ordinance for committing Zina under section 10(3) and under section 11 of the Ordinance and a fine of Rs.10, 000 under section 302, P . P . C . to 25 years' R.I. (two counts) under section 10(3) of the Ordinance with 30 stripes and under section 11 of the Ordinance to imprisonment for life with 30 stripes and to pay a fine of Rs.5,000 on two counts. They were given the benefit of section 382‑B, Cr.P.C. On appeal, the Federal Shariat Court set aside the conviction and sentence of the appellant under section 10(3) of the Ordinance but maintained the conviction and sentence of the appellant otherwise. Mr.Ahmed Raza Khan Qasuri, Advocate, the learned counsel for the appellant, has contended before us that in view of the involvement of a large number of persons in an occurrence which had taken place in the darkness at midnight and so many inmates of the house who were equally natural witnesses to the occurrence had turned hostile and had not supported the prosecution case it was not proper, keeping in view the requirement for the safe administration of criminal justice, to convict the appellant on the testimony of two ladies who were directly affected by the crime but at the same time had made an uninspiring statement at the trial. According to the First Information Report, the appellant and the deceased Muhammad Afzal were friends so much so that having abducted one Mst.Razia the appellant entrusted her to the custody of .the deceased. The cause of enmity, according to the prosecution, was this Mst. Razia who was handed over by the deceased Muhammad Afzal not to Allah Dewaya who had left her with him but to her father and that too on receipt of a sum of Rs.20,

000. This, according .to the prosecution, hurt and aggrieved the appellant who had in the company of such a large number of his associates attacked and killed the deceased and taken away the two ladies and kept, them in confinement and committed rape on them. There is no evidence with regard to the truthfulness of this motive except; that we get from the First Information Report and the little bits from the witnesses who had resiled from their earlier statements and were declared hostile and as Nst Razia had been kept for a number of days away from her family and returned on receipt of money it should not have been difficult to produce some independent evidence to prove the motive so that its gravity and impact could be felt in appreciating the prosecution evidence which has suffered materially in view of the alleged compromise arrived at between the complainant and the accused party . Out of seven eye‑witnesses produced in the case, four' eye‑witnesses were declared hostile and cross‑examined by, the prosecutor himself. The maker of the First Information Report Lal (P.W.1) even in the F.I.R. stated that it was possible to identify the culprits in the moonlight. Besides, it is an admitted fact that in, the F.I.R. not only a large number of persons had been named but one so named, namely, Ghulam Haider was at that time in detention in Dera Ghazi Khan and had obviously been falsely implicated and? this was in spite of the fact that the inmates of the house must have, concurred as to who were the culprits before the First Information Report was lodged at the police station. This fact was admitted by Imam Bakhsh (P.W.2). He stated as follows:‑ "Accused Ghulam Hyder was in detention at District Jail DG Khan at the time of occurrence. We had only suspected the accused for the commission of the offences first and after having removed our doubts about the innocence or otherwise of the accused, we have settled the matter." As regards the two abductees Mst. Lal Mai(P.W.20) and Mst. Naziran Mai (P.W.10) on whose testimony the conviction of the appellant is based, Mst. Bakht Sawai (P.W.17) stated as hereunder:‑ "It is correct that Mst. Lai and Naziran had gone to the house of their parents 2 days before the night of incident. It is correct that they had reached back to their house two days after the incident. It is correct that when, the incident took place I and Mst. Pathani ‑got ourselves concealed inside the house. Mst‑ Lal and Naziran were not abducted on the night of occurrence. Mst. Lal has been married to a person who resides in the excluded area of D.G.Khan." Mst. Lal (P.W.20) was questioned at the trial for her credibility and the record contains the following questions and answers:? "I observe Pardah. I am illiterate. I can read the watch. (She has been shown the watch by the counsel of accused and could not read it towards ascertaining the time). I could assess the time of incident because the Radio played in the night. I was awake at the time of incident." Even the male witness who has not been declared hostile, namely, Faiz Muhammad', (P.W.3) stated. as follows about the occurrence:‑ "The accused who had been named by me had muffled their faces at the time of occurrence‑. I did not identify them: at that time. It is correct that Mst. Lal and Naziran were not recovered by the police in my presence ... I have named the accused involving them in the commission of the offences in my examination‑in‑chief on the basis of what I heard from the others." The requirement of a criminal trial and the safe administration of criminal ‑justice have been emphasized in numerous decisions. One such case is that of Muhammad and Sher and others v . The Crown PLD 1954 Federal Court 84 holding that where for an offence of murder, the evidence of the prosecution witnesses is wholly rejected, as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses, for the purpose of convicting the remaining accused in the case 'of that offence in the absence of any confirmatory circumstance. In the case of Mst.Hamida Bano v. Ashiq Hussain P L D 1963 S C 109 it was held that the consequence of such a widening of the sphere of accusation on allegations which are comparatively limited in scope ordinarily is to create doubt in the mind of the Court as to the truth of the entire prosecution case. The????? motive having not been satisfactorily proved, the eye‑witnesses having turned hostile and making contradictory statements and the two eye‑witnesses on whose testimony the conviction of the appellant is based being not themselves thoroughly reliable and there being lack of strong corroborative evidence, it cannot be said that the prosecution case against the appellant has been proved f beyond reasonable doubt, Giving him the benefit of doubt, this appeal is accepted and the conviction and sentence of the appellant is set aside and if he is not required in any other case, he shall be set at M.Y.H./A-264/S????????????????????????????????????????????????????????????????????????????????? Appeal allowed