1993 P Cr (PLP)

S. 10(2)

Appreciation of evidence

Non-production of evidence in defence by the accused could not operate against him and the opinion of Investigating Officer could not be made basis of his conviction

Absence of any hostility between the complainant and the accused could in itself not constitute legal justification for believing her testimony against the accused as she had been disbelieved qua co-accused with whom she had no enmity-- Contention of prosecution that it was unsafe to convict accused on the evidence which in case of his co-accused was disbelieved and that accused should be given the same treatment as meted out to his co-accused was not without substance

Accused was acquitted in circumstances. Mian Sarfraz-ul-Hassan for Appellant. Muhammad Akhtar, Addl. A.-G. and A.H. Masood for the State. Date of hearing: 5th October, 1992. Mansha Masih, son of Inayat Masih, aged 24 years, labourer, resident of Ajan Chak, Tehsil Wazirabad, District Gujranwala, has preferred this appeal against the judgment of the learned Additional Sessions Judge, Gujranwala Camp Wazirabad, dated the 7th May, 1991, whereby he was convicted of the commission of offence of Zina and was sentenced under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), to undergo rigorous imprisonment for seven years, suffer thirty stripes of whipping, pay a fine of Rs.2,000 and in default of payment thereof to pass further rigorous imprisonment for six months. The appellant's co-accused, who faced trial with him, however, earned acquittal. Briefly stated the prosecution was laid against the appellant was that he alongwith Muhammad Siddique and Muhammad Amin had committed Zina-bit-Jabr with Mst. Sughran Bibi, P.W.1, an 18 years old unmarried girl. He denied having committed any crime and described the case against him to be a false one: Mst. Sughran Bibi alleged that she had been abducted on the 13th May, 1986, and till the .19th May, 1986, when she had secured release, the appellant and his co-accused had committed Zina-bit-Jabr with her.

2. The ocular evidence against the appellant and his co-accused brought on the record consisted of the depositions of Mst. Sughran Bibi and Muhammad Shafi, P.W.3. As deposed by Muhammad Shafi, P.W.3, he had seen Muhammad Amin committing Zina with Mst. Sughran Bibi and the appellant and Muhammad Siddique standing nearby. He had been attracted by the shrieks raised by Mst. Sughran Bibi after Isha prayer. He did not intervene. He was a local councillor. The learned trial Judge, for valid reasons, has disbelieved his testimony. The learned Judge also disbelieved the evidence of Mst. Sughran Bibi in so far as it blamed Muhammad Amin and Muhammad Siddique for committing Zina-bir-Jabr with her. However, he used the same evidence against the appellant to hold him guilty. The reasons given by him, as conceded by the learned counsel for the State, are not legally sound. He tried to distinguish the case of the appellant from that of his co-accused for the reasons that he had not led any evidence in defence and that the Investigating Officer had stated that during investigation he had found the appellant to be guilty. Non-production of evidence in defence by the ''appellant could not operate against him and the opinion of the Investigating Officer could not be made basis of his conviction. Absence of any hostility between the complainant and the appellant would in itself not constitute legal justification for believing her testimony against the appellant because she had no enmity with the appellant's co-accused but she had been disbelieved qua those accused. The learned counsel for the State contended that it was unsafe to convict the', appellant on the evidence which in case of his co-accused was disbelieved. He was of the view that the appellant should be given the same treatment as has been meted out to his co-accused. His contention is not without substance. In the, circumstances the appeal is accepted, the conviction of the appellant recorded and the sentence awarded to him by the learned trial Court are set aside and he is acquitted of the charge levelled against him. He is on bail. He is discharged of the obligations attending to the bail bonds executed by him. N.H.Q./754/FSC Appeal accepted.