1986 P Cr (PLP)

Inayat Ullah Khan Niazi and Shah Ahmad Baloch for Appellants. Hafiz Ghulam Bari for the State. Date of hearing: 6th May, 1986. MUFTAKHIRUDDIN, J.‑‑The Additional Sessions Judge, Mianwali has convicted the appellants vide impugned order, dated 18‑11‑1985 under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). Appellant Abdul Razzak son of Muhammad Usman has been convicted under section 16 of the Ordinance and has been sentenced to seven years' R.I. with 30 stripes and fined also Rs.1,500 and in default to further undergo R.I. for 1 years and also under section 10(2) sentenced to 10 years R.I. and Rs.3,000 fine or in default of payment of fine to further undergo R.I. for two years, with whipping numbering 30 stripes while Mst. Naziran daughter of Yar Muhammad has been convicted under section 10(2) of the Ordinance and sentenced to the same punishment awarded to the male accused (Abdul Razzak). Both the appellants have challenged their convictions and sentences through this appeal.

2. Mushtaq Ahmad S.H.O. Police Station Isakhel, District Mianwali received a written complaint made by one Yar Muhammad son of Noor Muhammad, Luhar resident of Isakhel to the Martial Law Authorities. This was received in the Thana on 3‑7‑1983 at 10‑30 a.m. and was referred to Qutab Sher who formally registered the same and sent the case to Mushtaq Ahmad S.H.O. who arrested both the accused alongwith one Yar Muhammad from outside the premises of Senior Civil Judge, Mianwali on 3‑7‑1983 where they had gone in connection with a case under section 328/109, P.P.C., initiated by Amanullah, the husband of Mst. Naziran. The lady accused was referred for medical examination to Lady Dr. Nuzhat Tujammal (P.W. 4) and the male accused were examined by Dr. Muhammad Anwar (P.W.10).

3. The allegations against the accused persons were that they had indulged in the commission of Zina. The precise allegations are contained in the F. I. R. wherein it has been said by Yar Muhammad (P.W.1) that his daughter Mst. Naziran Bibi (lady accused). was married to Amanullah ten years ago and had two sons out of that wedlock. The male accused Abdul Razzak who was employed in Post Office at Isakhel started coming to the house but was prevented to visit the house. On 24‑10‑1982 Abdul Razzak was found committing Zina with Mst. Naziran which incident was witnessed by Amanullah and he himself. Both tried to apprehend Abdul Razzak but he fled away. Due to shame the matter, the incident was not reported. Abdul Razzak and Mst. Naziran conspiring together administered poison to Amanullah and a case under section 328/109, P.P.C., in the Police Station Isakhel was registered and both Mst. Naziran and Abdul Razzak were challaned. Abdul Razzak got himself and Naziran released on bail and kept her to his house at Mauza Trug. When (complainant) learnt about this, he alongwith his wife Taj Bibi (P.W. 2) and son Rashid Ahmad (P.W.3) with some other persons named in the complaint /application went to Abdul Razzak in village Trug, Razzak promised to return Mst. Naziren but later sent her to one of his relatives named Yar Muhammad (acquitted accused) at Moch town. There also Abdul Razzak and Yar Muhammad have been indulging in Zina. This fact is known to the members of the families of Abdul Razzak and Yar Muhammad.

4. During the investigation of the case the lady accused was examined by P.W. 4 (Dr. Nuzhat Tajummal) who reported that Mst. Naziran had no sign of external injury and abrasion, her last menstrual period was one week. Three vaginal swabs were taken and sent to the Chemical Examiner but were not found stained with semen.

5. The prosecution has examined as many as ten witnesses but dropped Amanullah and according to the prosecution he was won over. B Except Yar Muhammad (P.W.1) Mst. Taj Bibi (P.W.2) the mother of Mst. Naziran and Rashid Ahmad, the son of the complainant. All other P.Ws are formal witnesses. Their statements need not be repeated here in this judgment. The trial Court in spite of the contradictions, omissions and exaggeration made by these witnesses convicted and sentenced both the accused /appellant as mentioned above

6. The learned counsel appearing for the appellants has taken us to the entire evidence on record and has made a submission that the story as narrated by the complainant Yar Muhammad and supported by Mst. Taj Bibi and Rashid Ahmad is not substantiated through any evidence and there is no evidence of Zina on record. Hafiz Ghulam Bari, Advocate appearing for the State has candidly stated before us that these witnesses are not believable. We have appreciated the candidness of the State counsel. We are of the considered opinion that the version of the prosecution as stated by Yar Muhammad, his wife and son that they had gone to the house of Abdul Razzak for the restoration of Mst. Naziran and their assertion that there had been the male accused committing Zina is not possibly believable. In this view of the matter we may refer to the observation of the Full Bench of the Federal Shariat Court in Mst. Sakina's case P L D 1981 F S C

320. The evidence of these witnesses therefore, being unbelievable, no evidence is left against the accused to prove the commission of Zina. We, therefore, accept the appeal and set aside the impugned convictions and sentences passed against the appellants and order that they shall be released forthwith if not required in any other case. S.A. Appeal accepted.