1993 P Cr (PLP)

P.W.1 Muhammad Anwar: Complainant and husband of convict Mst. Zakia Bibi. Examination-in?-chief of his evidence is as under:-- "I am working as a Labourer at Lahore. Zakia Bibi accused present in the Court is my wife. We were married 15/16 years back. We have four daughters and two sons, who are alive. Anwar Masih accused used to visit my house, who abducted my wife when I was away to Lahore. Abdul Hameed and Ashraf P.Ws. told me that they saw Zakia Bibi accused going alongwith Anwar Masih accused in a train. Anwar Masih accused prior to the occurrence had installed a hand pump in my house. My daughter told me that Zakia Bibi had gone to village Dheer, I went there but my father told that Zakia Bibi had not come there. I searched for them. A golden ring and pair of golden ear-rings and a cash of Rs.1,500 were missing and taken by Anwar Masih accused. I got drafted the application by Abdul Hameed and while going to the Police Station alongwith Abdul Hameed and Khushi Muhammad, I met the police party at Daiwanwala Syedan, where I presented written application which is Exh.PA. which bears my thumb-impression, which was read over to me. Both the accused were apprehended by the police at Chowk Jewan Bhindran, Tehsil Narowal. Anwar Masih accused enticed Mst. Zakia Bibi accused for the purpose of Zina." P.W.2 Abdul Hameed: Examination-in-chief of his evidence is as under:-- "I am a rice dealer having mill for husking rice opposit to the Railway Station Rayya. About 8-1/2 months back at about 6-30 or 7-00 a.m. I saw both the accused boarding train at Rayya Railway Station for Lahore. I told this incident to Anwar complainant. After about 13/14 days of the registration of the case I was going from my rice husking mill to my village when at Chowk Jewan Bhindran Rayya the accused were apprehended by the police, I was present alongwith Yousaf and Allah Rakha P.Ws. The recovery memo. Exh.P.B. was prepared by the police which I attested alongwith other aforesaid P.Ws." P.W.3 Rehmat Ali: Examination-in-chief of his evidence is as under:-- "About 8 months back it was about 12 or 1 p.m. I after performing my duties at a brick kiln was coming towards my house in the village via Rayya Railway Station. On the way I came to know that Ibrahim had come in the village after medical treatment from Lahore. Shari P.W. also met me and both of us went towards the house of Ibrahim to enquire about his health. The door of the house of Ibrahim was bolted. Shari P.W. asked me that he would remove the door. Then by standing near the wall of the house of Ibrahim we both saw accused committing Zina in the room of the house. We came back to our house and after about 20/25 days the accused fled away from their houses." P.W.4 Muhammad Shafi: Examination-in-chief of his evidence is as under:-- "About 8/9 months back at afternoon I was going to the house of Ibrahim father of Mst. Zakia to enquire about his health, as I came to know that he had come back from Lahore after receiving medical treatment. Rehmat Ali P.W. met me on the way and we both went to the house of Ibrahim and saw the door of the house bolted from inside. By standing near the wall we looked into the house and saw in a room accused committing Zina. One door of the room of the said house was open and the other was closed. We came back to our houses. Later on we came to know that both the accused had fled away from the village." P.W.5 Muhammad Akram, H.C./Moharrir, formal witness: P.W.6 Syed Sibte Hassan, Resident Magistrate. P.W.7 Dr. Muhammad Yousaf Bajwa, M.O. P.W.8 Muhammad Ashfaq, Inspector/S.H.O., Investigating Officer.

5. In their statements recorded under section 342, Cr.P.C. the appellant and his co-associate Mst. Zakia Bibi denied the allegation and claimed innocence. However, D.W.1 Sohan Masih was examined in defence. The learned trial Judge did not believe the version of the appellant and his co? accused Mst. Zakia Bibi and convicted them for the offence under section 10(2) of the Ordinance only. It seems that they were acquitted of the charge under section 16 of the Ordinance and section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Appellant Anwar Masih has filed this appeal challenging his conviction and sentences whereas convict Mst. Zakia Bibi did not file any appeal.

6. Malik Waqar Saleem, Advocate, appeared for the appellant and Mr. Gulzar Khan Lashari Baloch, Advocate, appeared for the State.

7. With the assistance of the learned counsel for the parties I have gone through the evidence of P.W.1 Muhammad Anwar, P.W.2 Abdul Hameed, P.W.3 Rehmat Ali and P.W.4 Muhammad Shafi. P.W.1 Muhammad Anwar is not an eye-witness of the incident. P.W.2 Abdul Hameed had seen arrest of appellant Anwar Masih and Mst. Zakia by Muhammad Ashfaq, Inspector. P.W.3 Rehmat Ali and P.W.4 Muhammad Shafi claimed to be eye-witnesses of seeing the appellant committing Zina with Mst. Zakia Bibi. Evidence of other witnesses is of formal nature and not material for the decision of this appeal. So far the delay in lodging of the case is concerned, it is not material. However, the evidence of P.W.3 Rehmat Ali and P.W.4 Muhammad Shafi is of dubious nature as their names do not appear in the F.I.R. It seems that they have been introduced to falsely implicate the appellant and co-associate Mst. Zakia Bibi. Their evidence does not inspire confidence. Then remains evidence of P.W.2 Abdul Hameed. He had seen arrest of the appellant and Mst. Zakia Bibi. In his statement the appellant and defence witness have stated that he and complainant Muhammad Anwar had beaten him. The statement of the appellant and that of defence witness was corroborated by Dr. Muhammad Yousaf Bajwa, who examined appellant Anwar Masih regarding the injuries received by him at the hands of witnesses Muhammad. Anwar anal Abdul Hameed. Evidence of Abdul Hameed, therefore, inspires no confidence. Then remains the evidence of P.W.8 Muhammad Ashfaq, Inspector. Mere his seeing the appellant in company of convict Mst. Zakia Bibi would not connect them with the offence of Zina under section 10(2) of the Ordinance. However, the learned counsel for the State in spite of all that supports the conviction and sentence of the appellant. I have already observed that evidence of material prosecution witnesses does not inspire confidence, hence conviction and sentences of the appellant cannot be maintained. His appeal is, therefore, I accepted. His conviction and sentences recorded by the learned trial Judge on 1-6-1992 are set aside. He stands acquitted of the charge. He be set at liberty forthwith if not required in any other case.

8. As appellant Anwar Masih has been acquitted of the charge, benefit of his acquittal can also be given to Mst. Zakia Bibi, though she has not filed any appeal before this Court. In such view of the fact her conviction and sentences recorded against her by the learned trial Judge on 1-6-1992 are set aside and she is acquitted of the charge. She be set at liberty forthwith if not required in any other case. N.H.Q./802/FSC ??????????????????????????????????????????????????????????????????????????????? Appeal accepted.