2006 P Cr (PLP)

S.A. RABBANI, J.

The two appellants Aamir Mushtaq and Mumtaz Bibi were convicted by Mr. Sadaquat Ullah Khan, Additional Sessions Judge, Faisalabad, under section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Each of them has been sentenced to two years rigorous imprisonment, with a fine of Rs.5,

000. The appellants sent a joint appeal from District Jail, Faisalabad.

2. The charge against these appellants and one Muhammad Mushtaq, father of appellant Aamir Mushtaq, was that the father and the son enticed away Mumtaz Bibi and thereby committed an offence punishable under section 16 of the Ordinance. Aamar Mushtaq and Mumtaz Bibi were further indicted under section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

3. F.I.R. in this case was lodged by P.W. Zawar, father of the appellant Mumtaz Bibi, on 9-11-2002, at Sargodha Road Police Station, Faisalabad, whereby he reported that Aamir Mushtaq and his father Mushtaq enticed away his daughter, appellant Mumtaz Bibi about 1-1/2 months before the date the matter, was reported. The complainant stated that 15/16 days back his brother Akbar informed him that P.W. Safdar had told him that Mumtaz Bibi was enticed away by Aamir Mushtaq and Mushtaq. Despite the fact that F.I.R. was lodged after a number of days, it did not contain an allegation of Zina against the appellants.

4. To prove the charge, prosecution examined nine witnesses. Six of them were police officials. The remaining three witnesses included complainant Zawar Ahmad, one Safdar Iqbal and his father Muhammad Amin. Appellant Mumtaz Bibi was a maid servant in the house of P.W. Safdar Iqbal.

5. After the trial, it was found that no case was made out against accused Mushtaq and he was acquitted. Appellant Aamir Mushtaq was also not convicted under section 16 of the Ordinance. The two appellants were convicted under section 10(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

6. Mr. Muhammad Saliheen Mughal, Advocate, representing the appellants, submitted that there is no evidence on record in connection with the offence of Zina by the appellant, beyond the statement of P.W. Muhammad Amin who was himself not a trustworthy witness as he admitted that he himself was arrested in this case. He contended that there is no medical evidence on record and the trial Court convicted the appellant merely on the assumptions and conjecture.

7. Mehr Sardar Ahmad Abid, learned State Counsel conceded that no case was made out against the appellants by the evidence placed on record.

8. Nobody in this case has been convicted by the trial Court under section 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The conviction of the appellants is under section 10(2) of the Ordinance, for which there is no medical evidence on record. The evidence of six police officials examined in this case is not about commission of Zina by the appellants. P.W. Zawar, who lodged the report and who is father of appellant Mumtaz Bibi, does not say that the appellants committed Zina Although he lodged F.I.R. after many days of the alleged enticement of his daughter, he did not allege that the appellants were involved in Zina.

9. P.W. Safdar Iqbal, in whose house appellant Mumtaz Bibi was working as maid servant, has also not stated that the appellants were seen committing Zina, but his father P.W. Muhammad Amin stated that in his house he had seen the two appellants committing Zina and he expelled Mumtaz Bibi from his house. He admitted that he was himself arrested in this case. He did not explain as to how the appellant Aamir Mushtaq got access in his house to commit Zina there.

10. The learned Judge of the trial Court held that, despite lack of medical evidence, the offence of Zina was established as the two appellants were living with each other. The learned Judge was not careful in recording statements of the accused and he recorded a similar answer to the question why the case was filed against the appellants. In the reply both the appellants Aamir Mushtaq as well as Mumtaz Bibi, in the statement under section 342, Cr.P.C. recorded by the trial Court, mentioned that "I was fed up by the cruel behaviour of my step-mother..." It is not understood as to which of the appellants was fed up with the cruel behaviour of step-mother. It is not known as to Aamir Mushtaq appellant had a step-mother or it was Mumtaz Bibi who had a step-mother.

11. The trial Court has not been able to analyse the evidence meticulously and convicted the appellants merely on assumptions. The charge against the appellants under section 10(2) of the Ordinance was not proved by the evidence placed on record. The conviction and sentence awarded to the appellants cannot, therefore, be maintained. Appeal is accordingly allowed and conviction and sentences awarded to the appellants are set aside. They, shall be released forthwith in this case. N.H.Q./154/FSC Appeal accepted.