1995 P Cr (PLP)

Abdul Khaliq Khan Niazi for the State. Date of hearing: 7th February, 1995. Convict Munir Ahmad son of Muhammad Siddique has filed this appeal against the judgment, dated 3-10-1994 passed by the learned Additional Sessions Judge, Lahore, in Hudood Case No.103 of 1993, whereby the appellant has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to R.I. for 10 years and 30 stripes. I have heard Mr. Rana Shakeel Ahmad Khan, learned counsel for the appellant and Mr. Abdul Khaliq Khan Niazi, learned counsel for the State. With the assistance of the learned counsel, I have gone through the record.

2. Complainant Mst. Shazia lodged a complaint on 19-5-1993 at Police Station Gaziabad, Lahore, that she resides with her mother, Mst. Tanveer Malik and her younger sister Mst. Saba and the accused also lives there in the adjoining room and sells ice. It was further averred by the complainant that her mother was employed in a school in Chauburgi area and a day earlier i.e. on 18-5-1993, when her mother had gone to school, at about 2-00 p.m. accused Munir Ahmad came into their room and turned out complainant's younger sister from the room and locked the door from inside and then forcibly committed Zina-bil-Jabr with her. The accused was arrested and after investigation sent up for trial. The prosecution examined 9 witnesses including the complainant, her mother, her sister and the Lady Medical Officer, who had examined the complainant. Accused Munir Ahmad denied the charge in his statement under section 342, Cr.P.C. He also gave evidence under section 340(2), Cr.P.C. Two neighbours, Mst. Jamila and Asad, were examined as defence witnesses. As observed, by the impugned judgment, dated 3-10-1994, the appellant was convicted and sentenced under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to 10 years' R.I. and 30 stripes.

3. Learned counsel had taken me through the record and learned counsel for the appellant also submitted that neither the complainant nor her mother supported the case against the appellant having stated in their cross-examinations that appellant was not the person who had committed Zina-bil -Jabr with the complainant. No doubt, in their examinations-in--chief; the complainant and her mother gave evidence against the appellant but in cross-examination, both of them totally absolved the appellant. No request was made on behalf of the prosecution to re-examine the two witnesses. The evidence of the Lady Medical Officer also did not fully support the prosecution case. Learned counsel appearing for the State could not controvert the contention of the learned counsel for the appellant that, as the complainant and her mother had absolved the appellant, the case against the appellant was not established. While going through the judgment of the trial Court, it is observed that no reference has been made to the answers given by the complainant and her mother in their cross-examinations totally absolving the appellant and the fact that there was no re-examination of the these two witnesses by the prosecution. Then the two neighbours who appeared as defence witnesses also stated in their evidence that appellant was not the culprit.

4. In my view it was unsafe to base the conviction of the appellant where the complainant and her mother themselves had not supported the prosecution case while being cross-examined.

5. As a result, this appeal is allowed, the judgment, dated 3-10-1994 passed in Hudood Case No.103 of 1993 by the learned Additional Sessions Judge, Lahore is set aside and it is directed that appellant Munir Ahmad son of Muhammad Siddique Awan be released forthwith, if not required in any other case. N.H,Q./946/FSC Appeal allowed