1994 P Cr (PLP)

NAZIR AHMAD BHATTI, J.

Complainant Muhammad Ramzan was passing by the house of accused Masheer Ahmad on 9-10-1992 at about 9-00 a.m. when he saw the former striking a bargain with accused Muhammad Sarwar inside his house. There was also present accused Mst. Sofia Bibi inside the house. Accused Masheer Ahmad was running a prostitution den. Accused Masheer Ahmad received a currency note of Rs.100 from accused Sarwar and came out. Complainant Muhammad Ramzan saw accused Mst. Sofia and Muhammad Sarwar committing Zina with each other. At that time Maqbool Ahmad was also accompanying the complainant. He submitted a written complaint to Police Station Saddar Sadiqabad at about 4-00 p.m. whereupon F.I.R. was registered. The complainant also produced all the three accused and also the currency note of Rs.100.

2. After investigation all the three accused were sent up for trial before the Additional Sessions Judge, Rahimyar Khan who charged all the three accused under section 13 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned Additional Sessions Judge also charged accused Muhammad Sarwar and Mst. Safia Bibi under section 10(2) of the Hudood Ordinance. All the three accused pleaded not guilty to the charge and claimed trial.

3. After the conclusion of the trial the learned Additional Sessions Judge convicted accused Musheer Ahmad under section 13 of the Hudood Ordinance and sentenced him to undergo imprisonment for life, to suffer 25 stripes and to pay a fine of Rs.5,000 or in default to further undergo rigorous imprisonment for 6 months. Accused Muhammad Sarwar and Mst. Safia Bibi were both convicted under section 10(2) of the Hudood Ordinance and each of them was sentenced to undergo rigorous imprisonment for 7 years to suffer 15 stripes and to pay a fine of Rs.5,000 or in default to further undergo rigorous imprisonment for 6 months.

4. Convict Mst. Safia Bibi has challenged her conviction and sentence by Criminal Appeal No.157/L of 1993. Convict Musheer Ahmad has challenged his conviction and sentence by Criminal Appeal No.172/L of 1993 whereas convict Muhammad Sarwar and Musheer Ahmad both challenged their conviction and sentence by Criminal Appeal No.178/L of 1993. Since all the three appeals have arisen from the same judgment, they are being disposed of by one judgment written in Criminal Appeal No.157/L of 1993.

5. Admittedly appellant Mst. Safia Bibi was married to appellant Musheer Ahmad and she was used to sexual intercourse. As such the medical evidence and the report of the Chemical Examiner are of little help in making a positive opinion about the commission of any sexual offence by her.

6. P.W.4 complainant Muhammad Ramzan and P.W.6 Maqbool Ahmad had both stated that they had seen the appellant Mst. Safia Bibi and appellant Muhammad Sarwar committing Zina with each other through a hole in the reedfence of Chapper (roof top). The complainant also admitted that he was a tenant of one Ch. Sattar and P.W.6 Maqbool Ahmad and said Ch. Sattar are of the same caste. Although the written complaint was thumb-impressed by complainant Muhammad Ramzan but appearing as a witness he stated that he did not know who had gone to the police to inform the matter while on the contrary P.W.6 Maqbool Ahmad stated that his younger brothers Anwar and Arshad had gone to inform the police at Sadiqabad. The complainant had stated that the police arrived after about 10 hours of the occurrence whereas P.W.6 Maqbool Ahmad had stated that the police arrived after about 1 hour of the occurrence.

7. There were not only material contradictions in the testimony of the ocular witnesses but the occurrence also seemed most improbable. One would be an utter fool to accept money for the purpose of prostitution in broad daylight and in the open so that other persons could see. Even otherwise it was impossible for the witnesses to have seen the occurrence from a hole from the roof top which consisted of reedfence where they could not have climbed. It transpires that the appellant had been falsely charged by the two eye-witnesses Muhammad Ramzan and Maqbool Ahmad due to some party or caste faction. The evidence produced during the trial was not sufficient to prove the guilt of all the three appellants. We; therefore, accept all- the three appeals, set aside their conviction and sentence recorded on 11-5-1993 by the learned Additional Sessions Judge, Rahimyar Khan and they are acquitted of the offence for which they were convicted and sentenced. They shall be released forthwith if not wanted in any other case. N.H.Q./876/FSC???????? Appeals accepted.