1988 PLP 986 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑This is a petition for leave to appeal from the judgment of a learned Single Judge of the Sind High Court dated 8th March, 1987, whereby the appeal filed by respondents against their Convictions and sentence; Under section 11 of the offence of Qazf (Enforcement of Hudood Ordinance), 1979, was allowed and they were acquitted of the charge.

2. The petitioner Mst. Rehana Jabeen was married with respondent Farrukh Hafeez on 3rd May, 1985, at Sukkur and was brought to Karachi. For the present purpose it is sufficient to state that after the marriage, the petitioner sent a notice to the respondents on 28th May, 1985, wherein allegations were made against them of maltreatment, imputation of unchastity and having obtained certain documents executed by her by use of criminal force. This notice was purportedly replied by the respondents through an advocate on 9th June, 1986, in which the respondents gave their version to the effect that on the very first night after the marriage it was discovered that the petitioner had committed sin and was not a virgin which fact was admitted by her in writing and was also confirmed on medical examination by a lady doctor.

3. On 3rd May, 1985, the petitioner lodged a complaint against the respondents under section 7 of the Offence of Qazf (Enforcement of Hudood Ordinance), with the result as stated earlier vide judgment of the Additional Sessions Judge (Hudood) Sukkur Division, Sukkur, dated 14th October, 1986. In the trial Court the complainant's case rested upon her own oral evidence and the oral evidence of her father, as well as the reply to, her notice purportedly sent by an advocate on behalf of the respondents. The accused in the statements under section, 342, Cr.P. C. denied that they had imputed unchastity against the complainant. The defence of respondent Farrukh Hafeez, the husband of the petitioner was that when the petitioner was taken to her parents at Sukkur six days after the marriage, her parents refused to allow him to take her hack to Karachi, insisting that he should live with them as Ghar Dymad. The trial Court mainly relied upon the documentary evidence comprising the said reply to the notice in arriving at the conclusion that the charge under section 11 of the offence of Qazf (Enforcement of Hudood Ordinance) was fully established.

5. In accepting the appeal and ordering the acquittal of the respondents the learned Single Judge in the High Court adopted the reasons which may be set out in his own words as under: ‑‑ "I have considered the contentions of the learned counsel and have also gone through the R & P of the case. It is an admitted position that the learned Advocate who issued the notice Ex.10 was not examined, nor any other person was examined to prove that the notice (reply) Ex.10 was issued at the instance of the appellants, therefore, the same was not proved as required by law. It has been held by Hon'ble Supreme Court in M/s Bengal Friends and Co. v. M/s. Cour Benode Sabe and Co. PLD 1969 SC 477 observation page 483, that the documents which are not copies of any judicial record could not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them as required by section 67 of the Evidence Act. This legal position was re‑affirmed by their Lordships in the case of Khan Muhammad Yousaf Khan v. S.M. Ayoob P L D 1973 S C

160. It is also clear from the statements Exh.15, Exh.16 and Exh.17, that question regarding issuance of notice Exh.10 at the instance of the appellants was not put to them in order to enable them to explain."

6. Learned counsel for the petitioner sought to assail the reasoning) of the learned Single Judge and contended that it was not necessary to confront the accused with the document purporting to be the reply of their notice on their behalf. He also submitted that even if the documentary evidence is excluded from consideration, there remains oral evidence which‑was sufficient to support the conviction. We are, however, not satisfied with these submissions. We agree with the learned Single Judge that it was incumbent upon the prosecution to connect the document containing the imputation of unchastity, which was the gravamen of the charge with the accused, particularly when it was not signed by them. There is not a shred of evidence, except the purport of the document itself that the same incorporated the instructions given by the respondents. The contents of this document cannot, therefore, be attributed to the respondents. So far as the oral evidence is concerned the learned Single Judge has examined its veracity and has come to the conclusion on the basis of circumstances on the record that the same was not worthy of credit. In any case no principle of evaluation of evidence has been violated and this Court does not ‑ordinarily undertake reassessment of evidence at this stage. ???????????

7. For all these reasons there is no merit in this petition which is accordingly dismissed. S.Q. /R‑46/S??? ?????????????????????????????????????????????????????????????????????? Petition dismissed.