2001 P Cr (PLP)

ALI MUHAMMAD BALOCH, J.‑‑‑ This appeal against acquittal has challenged the judgment, dated 17‑2‑2000 passed by Additional Sessions Judge, Chakwal acquitting accused Mst. Khursheed Begum and Muhammad Muneer from the allegations of having committed Zina with each other.

2. The precis of the facts is that the appellant Sultan Ahmad had filed the case against accused above named at Police Station City Chakwal through his F.I.R., dated 11‑3‑1998 by way of submission of a written application to the S.P., Chakwal. He bore grudge against his wife Mst. Khursheed Begum the accused, now respondent No.1 in this appeal. Sultan Ahmad alleged that he is an employee of Islamabad Police and his wife Mst. Khursheed Begum in his absence was taken away by the accused Muhammad Muneer/respondent No.2. The accused Muhammad Muneer had detained Mst. Khursheed Begum but Sultan Ahmad's mother‑in‑law Mst. Sakina Begum brought Mst. Khursheed Begum to the house of P.W. Muhammad Sharif at Ashraf Town, Chakwal to bring about a compromise between the husband and the wife. Mother of Sultan Ahmad did not agree to the compromise as a result Mst. Khursheed Begum was not allowed to live in the house of Sultan Ahmad. Once again Mst. Sakina Begum brought Mst. Khursheed Begum to the house of Muhammad 'Sharif for the purpose of effecting the compromise. At that time, Sultan Ahmad claimed that he had come on leave and was present in his house. He took Mst. Khursheed Begum to the hospital and on getting an ultrasound test he learnt that Mst. Khursheed Begum was carrying pregnancy since about five months. Sultan Ahmad, therefore, lodged complaint against Mst. Khursheed Begum and Muhammad Muneer stating that they had been committing Zina with each other and hence they be punished under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

3. The trial took place in the Court of learned Additional Sessions Judge, Chakwal who examined eight witnesses arid by a considered judgment,' acquitted Mst. Khursheed Begum and Muhammad Munir from the charge under section 16 read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

4. This appeal was filed under section 417, Cr.P.C. and on pre -admission notice the respondents were also heard.

5. We heard the learned counsel for the appellant and the counsel for the respondents in a great detail and we also examined the record and scrutinized the entire evidence. We have come to the conclusion that this appeal against acquittal was not worth admission and consequently, we have dismissed the same in limine.

6. The main reason for not finding this appeal worth admission to regular hearing was that accused Mst. Khursheed Begum had claimed that pregnancy out of her wedlock with Sultan wedlock at relevant time' was not denied by complainant Sultan Ahmad, the husband. There was no positive or circumstantial evidence of the commission of Zina between the two accused, viz. Mst. Khursheed Begum and Muhammad Muneer. It could be a suspicion of Sultan Ahmad. Only evidence of the pregnancy of Mst. Khursheed Begum under the circumstances of the present case would have merely created a doubt of commission of Zina on the basis of which neither she nor co‑accused Muhammad Muneer could be convicted. Muhammad Muneer is admitted to be uncle of Mst. Khursheed Begum, it is not the case of Sultan Ahmad that he was Na‑Mahram of the accused Mst. Khursheed Begum.

7. On giving a deeper thought we find from the statement under section 342, Cr.P.C. of Mst. Khursheed Begum that she had claimed that she and her husband had been living together till the month of December, 1997 and that as the result of their cohabitation M‑. Khursheed Begum had acquired pregnancy.

8. The evidence led by the appellant suggested that there was bad blood between the husband and wife. Mst. Khursheed Begum who was a sick lady. The case of Mst. Khursheed Begun and the co‑accused Muhammad Muneer was that Sultan Ahmad was pressurizing Mst. Khursheed Begum to ask her uncle accused Muhammad Muneer to give the hand of his daughter to Sultan Ahmad's brother‑in‑law in marriage. Mst. Khursheed Begum did not succeed in satisfying the demand of Sultan Ahmad in this regard, as accused Muhammad Muneer got his daughter married to another person Muhammad Aslam and did not agree to Sultan Ahmad's proposal. Sultan Ahmad nourished a grudge against his wife Mst. Khursheed Begum as well as her uncle Muhammad Muneer on the above account. Sultan Ahmad appeared to have some influence being an employee in Police Department and, therefore, managed to file this case against the two accused to humiliate and trouble them. Such possibility can hardly be ruled out of consideration.

9. There is no clear proof of the fact that Mst. Khursheed Begum had become pregnant on account of her cohabitation with her uncle co‑accused Muhammad Muneer, as there is absolutely no evidence about their cohabitation. Merely living of Mst. Khursheed Begum in the house of her uncle, with pregnancy, does not provide the Court with a proof of Zina worth punishment under the Hudood laws. No allegation of even illicit intimacy between the two accused was brought on record.

10. We have considered all the relevant facts and circumstances of the entire case and we find that the judgment of acquittal is balanced and well reasoned, and we hold that enough evidence for conviction of the accused was not available in the case. After the acquittal, the accused‑respondents enjoy double presumption of being innocent as the first presumption is awarded to them by the law of the land while the second presumption is created by the impugned judgment of acquittal. To do away with both these presumptions, prosecution required a fool proof case which is not in hand before us. Under these circumstances, the appeal against acquittal filed by Sultan Ahmad is dismissed in limine. N.H.Q./39/FSC Appeal dismissed.