2006 SC MR 348 (PLP)

JUSTICE ABDUL HAMEED DOGAR (CHAIRMAN).

By this single order we propose to dispose of Criminal Petitions Nos.38(S) and 39(S) of 2004 filed by petitioner against judgment, dated 29-9-2004 passed by learned Federal Shariat Court, Islamabad, whereby Criminal Appeal No.88/I of 2004 filed by respondent Shakeel Liaqat was allowed and he was acquitted from the charge under section 456, P.P.C. whereas Criminal Appeal No.99/I of 2004 filed by petitioner Muhammad Aslam complainant against the acquittal of respondents Shakeel Liaqat and Mst. Nusrat Bibi from the charge under section 10(2) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as `the Ordinance') was dismissed.

2. Precisely, stated the facts of the case, are that on 20-10-2000, complainant Muhammad Aslam lodged F.I.R. at Police Station Jatli, Tehsil Gujar Khan, wherein he alleged that respondent Mst. Nusrat Bibi, widow of his brother, was living in the adjacent house. In the meanwhile, she developed illicit relations with respondent Shakeel Liaqat. On the same day i.e. 20-10-2000 at about 11-30 p.m. respondent Shakeel Liaqat entered the house of Mst. Nusrat Bibi to commit Zina with her and while they both were in the room, the complainant bolted the room from outside and informed the police. The police arrested them and a case under section 10(2) of the Ordinance was registered against them. 3.Charge under section 10(2) of the Ordinance was framed to which they pleaded not guilty and claimed trial.

4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the respondents produced nine witnesses in all. P.W.6 Muhammad Aslam was the complainant. He at the trial, reiterated the version contained in the F.I.R. Muhammad Siddique P.W.7 also supported the prosecution version regarding date, time and place of occurrence. P.W.5 Dr. Nabeela Irum, Medical Officer who examined Mst. Nusrat Bibi respondent deposed that from medical examination of Nusrat and in the light of the report of Chemical Examiner, she was of the opinion that complete sexual act was committed on the day of incident. P.W. Dr. Pardeep Kumar who examined respondent Shakeel Liaquat observed that he was capable to perform the sexual act.

5. In their respective statements recorded under section 342, Cr.P.C. both the respondents denied the case of prosecution and claimed innocence. However, they neither examined themselves on oath as required under section 340(2), Cr.P.C. nor led any evidence in defence.

6. The learned trial Court acquitted both the respondents under section 10(2) of the Ordinance whereas convicted respondent Shakeel Liaqat under section 456, P.P.C. to three years' R.I. with benefit of section 382-B, Cr.P.C.

7. We have heard Mr. Muhammad Ryas Siddiqui, learned Advocate Supreme Court for the petitioner and have gone through the record and the proceedings of the case in minute particulars.

8. Learned counsel for the petitioner could not point out any illegality or irregularity, misreading or non-reading of material evidence. The main reason which weighed for the acquittal of respondent Shakeel Liaqat was that Muhammad Aslam petitioner has improved his version before the trial Court where he while deposing stated that respondent Shakeel Liaqat entered the house of respondent Mst. Nusrat Bibi. Finding them inside the room, he bolted the door from outside and went to inform P.W. Muhammad Siddique in his house and after taking Muhammad Siddique with him, they went to the house of Muhammad Saleem and thereafter saw that respondents were committing Zina in the light of lantern while peeping through the hole. The version does not seem to be true in view of the fact that it would not appeal to a person of ordinary prudence that the respondents continued to commit the offence despite the fact that they were already checked and chained by the complainant. The reasoning given for acquittal of respondents by the trail Court and upheld by the Appellate Court seem to be convincing. The main reason which weighed for their acquittal from the charge under section 10(2) of the Ordinance was that though both were apprehended at the spot and the semen were detected but their matching was not done. The incident was seen in the light of lantern is also improbable because it is not humanly possible to, perform the act of intercourse and again while performing the act of intercourse, the respondents should have got the lantern burnt and thereafter when they were not doing such nefarious act and were caught by the police, the lantern was closed as in the statement of P.W.B. Then again when there was a mosquito-net upon the cot, it is again impossible that at mid-night time in the light of lantern, the witnesses were able to witness the actual commission of Zina by peeping through the holes, as there was only one cot found in the room and the respondents must have according to the prosecution performed the act of c intercourse on the said cot which was covered with mosquito-net as stated by P.W.B. Learned counsel could not show that impugned judgment was perverse, arbitrary or capricious, as such, no interference can be made in the impugned judgment. The version of prosecution was rightly found to be untrue and was thus, rightly disbelieved. Finding no reason to interfere with the judgment of acquittal, both the petitions stand dismissed and leave to appeal refused. N.H.Q./M-336/SC????????????????????????????????????????? Leave to appeal refused.