P L D 2006 Supreme Court 81 (PLP)

ABDUL HAMEED DOGAR (CHAIRMAN).

This appeal by leave is directed against the judgment dated 29-3-2002 passed in Criminal Appeal No.39-L of 2002 whereby the said appeal was dismissed by learned Judge in Chambers of the Federal, Shariat Court, whereby the judgment dated 23-1-2002 passed by learned Additional Sessions Judge, Faisalabad, was upheld maintaining the conviction of appellant under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as `the Ordinance') with modification in sentence of imprisonment from ten years R.I. and fine of Rs.20,000 to six years' R.I. and fine of Rs.4,000, so also maintaining acquittal of co-accused Mst. Kausar Bibi alias Nanhi.

2. Briefly, stated the facts of the case are that appellant along with acquitted accused Mst. Kausar Bibi was charged that he had committed Zina with Mst. Asia alias Bibi daughter of Mukhtar Ahmad in the area of Mohallah Madina Abad, Dhodhiwala, Faisalabad, knowing that he was not legally wedded to the said Mst. Asia and further that while committing Zina with her, she became pregnant and he induced to cause miscarriage of foetus through co-accused Mst. Kausar Bibi but failed resulting in the birth of baby and death of said Mst. Asia. The appellant and acquitted accused denied the charged offence, therefore, prosecution examined P.W. 1 Muhammad Sharif, H. C .P. W .2 Muhammad Irshad, P.C., P.W.3 lady doctor Hameera Parveen, P.W.4 Muhammad Younas, P.W.5 Muhammad Saleem, A.S.I., P.W.6 Dr. Muhammad Ilyas, P.W.7 Abdul Rehman, P.W.8 Mukhtar Ahmad, P.W.9 Bahadar Ali and P.W.10 Jafar Ali, A.S.I.

3. The appellant and acquitted accused were examined under section 342, Cr.P.C. wherein they denied the commission of offence and stated that they have been falsely implicated in the case because of the appellant's quarrel with complainant objecting the visit of several persons in the complainant's house and has also asked the owner of the house to get the same vacated from the complainant and further P.Ws. were inimical to them being under influence of the complainant. After recording of evidence and examining the appellant, so also acquitted accused, the trial Court convicted the appellant under section 10(2) of the Ordinance and sentenced him to ten years' R.I. with fine of Rs.20,000 or in default of payment of fine to undergo three months' R.I. while the appellant and acquitted accused were acquitted from the charge of section 322, P.P.C. extending benefit of doubt. The appellant appealed before the Federal Shariat Court which was dismissed maintaining the conviction against the appellant with modification in sentence and fine as mentioned above.

4. We have heard Mr. Muhammad Zaman Bhatti, learned A.S.C. for State and have gone through the record and the proceedings of the case in minute particulars.

5. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court for the State has contended that the prosecution has fully established its case by producing independent and cogent evidence. He further contended the appellant has committed an heinous offence, therefore, he is not entitled to any leniency.

6. No one is present on behalf of appellant though called.

7. On the point of commission of Zina by the appellant upon victim/deceased Mst. Asia, the prosecution examined Mukhtar Ahmad, father of victim/deceased, Mst. Asia as P.W.8 and Bahadar Ali son of complainant as P.W.9. They both admitted that after divorce Mst. Asia deceased was living with them and appellant Shaukat Ali was residing in their neighbourhood who developed illicit relations with deceased Mst. Asia. Both the P.Ws. deposed that the time and again asked appellant to discontinue illicit relations with Mst. Asia but appellant did not pay any heed to it and went on continuing committing Zina in their house which the said P.Ws. had seen about two years prior to the recording of their statements but they did not lodge any report with the police due to family honour and because of intervention of respectable persons. There is no other independent and reliable evidence except the testimony of both said .P.Ws. who deposed to have seen appellant once or twice committing Zina upon Mst. Asia deceased and she subsequently became pregnant and after four days of delivery of a baby, she expired. Prima facie both the P.Ws. deposed that they were in the knowledge of the alleged commission of Zina between appellant and Mst. Asia being committed in their house about two years prior to the registration of the case but did not initiate criminal proceedings against them. Their testimony with regard to having seen commission of Zina in their house when they were most of the time away from the house, considering also the fact that they. did not initiate the criminal proceedings against appellant after having seen the said occurrence would appear to be unnatural and not confidence inspiring. Mere fact that Mst. Asia became pregnant and gave birth to a baby and after four days she expired would not by itself ex facie prove the commission of Zina by appellant. Burden to prove commission of Zina always lies upon the prosecution which in the instant case it has failed to prove. Criminal proceedings were initiated after the death of Mst. Asia. Considering the fact that an attempt to miscarriage foetus was also done at the instance of appellant and acquitted co-accused A was also not proved by the prosecution beyond reasonable doubt. The learned State counsel though argued at length yet could not point out any cogent evidence on record to establish the allegation against appellant in the case.

8. Resultantly, we allow this appeal while giving the benefit of doubt to appellant. He is in custody. He be released forthwith if not required in any other case. M.B.A./S-144/S Appeal allowed.