1991 PCr (PLP)

Muhammad Iqbal Vehniwal for the State. Date of hearing: 8th May, 1991. Amir Bakhsh appellant was tried by Additional Sessions Judge, Faisalabad, for an offence under section 18/10(3) of Offence of Zina (Enforcement of Hudood) Ordinance 1979, and vide judgment, dated 10-5-1986 convicted under section 354, P.P.C. and sentenced to two years' R.I. and fine of Rs.2,000 or in default thereof six months' R.I. He has come up in appeal.

2. Kameer complainant (P.W.2) lodged the F.I.R. on 17-10-1982 at 2-30 p.m. with respect to the occurrence that took place 1-1/2 months before the lodging of the F.I.R. According to the version in the F.I.R, the complainant was the labourer and during the days of occurrence was away to Lahore for labour. When he returned to the house, his wife informed him that their daughter Balqees aged 10 years when alone at the house at 3-00 p.m. was subjected to love making by the appellant who trespassed into the house. It is further in the F.I.R. that when the Shalwar was tried to be removed she raised alarm, which attracted Boota (P.W.4) and Amir Ali (given up) and the appellant ran away. It is also there that the report was being made late as in the meanwhile the appellant had been beseeching the complainant family.

3. In his statement at the close of the trial the appellant pleaded that the complainant had taken a loan of Rs.500 from him on the marriage of his son 3/4 years before the occurrence and on the demand for its return there had been a dispute between them. He also pleaded that Shat Lumbardar (P.W.5) had also taken loan from him and due to election bickering had falsely involved him in the case.

4. The prosecution produced Kameer complainant, Mst. Balqees, Boota and Muhammad Shari (P.Ws.2, 3, 4 and 5) to bring home the charge against the appellant.

5. Learned counsel for the appellant contended that from the statements of the witnesses no case beyond any reasonable doubt was proved. After hearing him and the learned counsel for the State and going through the record, the contention must be upheld.

6. Kameer complainant was not an eye-witness. He also admitted in cross -examination that he received the information of the occurrence 25 days after it but the appellant told him that he was innocent and even offered to take oath on the Holy Qur'an. He also stated that there was Punchait in which Zulfiqar, Slabat and others had vouchsafed his innocence. He admitted that 8/10 days after his return from Lahore, he had lodged the F.I.R. with the police. Boota (P.W.4) turned hostile and did not support the prosecution. According to the F.I.R. Amir Ali and Boota had reached the spot and the appellant had run away on seeing them. But Shafi Lumberdar (P.W.5) also came forward to say that he was also present with Amir and Boota in the Chowk and on the hearing of the alarm, had reached the spot. According to Shafi, they peeped through the door and saw the appellant and Mst. Balqees grappling and when the appellant had run away she ;old them that he had tried to commit Zina with her, Mst. Balqees herself deposed that the appellant on entering the house, bolted from inside, took her in Japha, conveyed her in the room and started committing Zina with her. This is, neither the case in the F.I.R, nor any witness has supported it. She was not even got medically examined. Hence from this evidence it could not be said that the, appellant had done any mischief with Mst. Balqees.

7. The appeal is, therefore, accepted. The conviction and the sentence arc hereby set aside. The appellant is on bail and stands discharged of the bail bonds. S.A./A-1312/L Appeal accepted.