1995 PLP 1501 (SCMR)

‑‑‑‑S. 10(2)‑‑‑Appraisal of evidence ‑‑‑Zina‑bil‑Raza‑‑‑No direct evidence of the commission of illicit intercourse by the accused with her co‑accused was available on record ‑‑‑Co‑accused in his statement before the Magistrate had denied any sexual intercourse having been committed by him with the accused‑‑‑Statement of accused that she was subjected to Zina‑bil‑Jabr by co- accused was not an incriminating evidence against her, rather it was exculpatory and could not be used for convicting her under S. 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for the offence of Zina‑bil- Raza‑‑‑ Accused was acquitted in circumstances. Nemo for Appellant. Tasleem Hussain, Advocate for the State. Date of hearing: 17th April, 1995. MUHAMMAD MUNIR KHAN, J.‑‑‑This appeal arises from the facts that Mst. Waten Khela appellant and Mir Awas Khan were tried under sections 5/16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) by the Sessions Judge, Kohat, on the charges that on 1‑7‑1988 Mir Awas Khan took away the appellant from her house and on the night between 1‑7‑1988 and 2‑7‑1988 they committed Zina with each other with their consent. The trial Court, vide its judgment dated 16‑9‑1990 convicted them under section 10(2) of the Ordinance and sentenced them to 5 years' R.I., ten stripes and a fine of Rs.500, each, or in default two months' R.I. each. The appeal filed by Mst. Waten Khela was dismissed by the Federal Shariat Court on 11‑11‑1990. Feeling aggrieved thereby, she filed a petition for leave to appeal which was granted on 24‑8‑1992, subject to limitation.

2. In view of peculiar circumstances of the case, delay in filing the petition for leave to appeal is condoned.

3. On 3‑7‑1988, Noor Haider, father of Mst. Waten Khela had lodged report at Police Station Saddar, Kohat alleging that Mir Awas Khan had abducted his daughter Mst. Waten Khela on 1‑7‑1988. Subsequently, they were arrested from main road in vicinity of village Kharmatoo. He supported his report in his statement‑ before the Court. Lady Doctor Sumera Khattak P.W.1 had examined Mst. Waten Khela on 4‑7‑1988. No mark of violence was found on her body. Vaginal swabs were taken and sent for chemical examination. The Chemical Examiner's report revealed that the swabs were stained with semen. During the investigation, Mst. Waten Khela and Mir Awas Khan were produced before the Magistrate for recording their confessional statements. In his statement, Mir Awas Khan stated that he had not committed any sexual intercourse with Mst. Waten Khela. On the other hand, Mst. Waten Khela in her confession recorded by the Magistrate stated that Mir Awas Khan had committed Zina‑bil‑Jabr with her.

4. No one is present on behalf of the appellant. So, to meet the ends of justice, we have examined the record with great care. We find no direct evidence of the commission of the illicit intercourse by Mir Awas Khan with the appellant. The mere fact that they were arrested on main road may create suspicion against them but suspicions never take the place of proof. Mir Awas Khan had stated in his statement before the Magistrate that he had not committed any sexual intercourse with Mst. Waten Khela. The statement of Mst. Waten Khela that she was subjected to Zina‑bil‑Jabr by Mir Awas Khan is not an incriminating evidence against her. Her statement is rather exculpatory and cannot be used for convicting her under section 10(2) of the Ordinance for the offence of Zina‑bil‑Raza.

5. For what has been stated above, there being no satisfactory basis to uphold her conviction and sentence under section 10(2) of the Ordinance, the appeal is accepted, the conviction and sentence awarded to the appellant is set aside and she is acquitted of the charge. She is already on bail. Her bail bonds are discharged. N.H.Q/W‑145/S Appeal accepted,