2001 PLP 1657 (YLR)

5. Prosecution in all had examined 8 P.Ws. at the trial. Shera, complainant had appeared as P.W.6. While repeating the facts given by him in the F.I.R., he had also stated that when he had returned home about 1‑3/4 years prior to the occurrence i.e. 22‑7‑1998, he had seen both the accused committing Zina with each other. He gave out that while Muhammad Ayub had succeeded in running away, he had caught his wife Mst. Naziran and beaten her with shoes and had released her, after undertaking given by her, that she will not repeat that act, in future. Excepting the said situation levelled by the complainant, for the first time, no other evidence was led at the trial in the shape of occular account that appellant and Mst. Naziran had been committing Zina with each other.

6. Dr. Nighar Batool, wilt, `tad medically examined Mst. Naziran on 4-8‑1998, had appeared as P.W.l. She stated that she had found Naziran habitual to sexual intercourse. She gave out that she had removed three swabs from her vagina and sent the same to the Office of the Chemical Examiner, for detectis of semen. After perusal of report Exh.P.B., received from the Office of Chemical Examiner, that swabs were not stained with semens she stated that no fresh intercourse had been committed with the examinee.

7. Complainant himself was not eye witness of the occurrence of abduction. The only evidence produced at the trial to prove charge under section 16 of the said Ordinance, against Muhammad Ayub, was the statement made by Muhammad Ali, P.W.7. Although, he stated, at the trial, that he had seen both the accused boarding a bus together, but he had not claimed that he had talked to them or claimed that any type of bagages were in the hands. Statements of remaining witnesses are more or less of a formal nature.

8. Appellant Muhammad Ayub during statement under section 342, Cr.P.C., denied the prosecution case and pleaded innocence. Muhammad Ayub took up the plea that he had been involved in this case due to enmity. Mst. Naziran Bibi co‑convict of the appellant/had taken up the plea that her husband used to beat her and she had left his house and submitted an application before the Magistrate for sending her to Dar‑ul‑Aman, on 5‑3‑1998 and that the Magistrate had recorded her statement on the same day and had lodged her in Dar‑ul‑Aman. She also stated that her husband had beseeched her for compromise and that as a result of which he submitted an application before the Magistrate on 7‑3‑1998, seeking permission to let him take her back to his house as compromise had taken place. Magistrate, after recording her statement on 11‑3‑1998, permitted her to leave Dar‑ul‑Aman and accompany her husband. She also stated that thereafter, again complainant had beaten her as a result of which, she had left his house and had filed a suit for dissolution of marriage, in the Court of Judge Family Court Sargodha, on 30‑4‑1998. She produced in defence Exh.D.C. copy of application dated 5‑3‑1998, submitted by her before the Magistrate for sending her to Dar‑ul‑Aman, Exh.D.D., copy of her statement recorded on the same day by the Magistrate, Exh.D.E., copy of the application submitted by Sher Muhammad (complainant in this case) before the Magistrate, where‑through he had prayed for permission to permit his wife to go with him to his house, Exh.D.F., copy of her statement recorded in pursuance to the said application on 11‑3‑1998, showing her willingness to leave Dar‑ul‑Aman and accompany her husband, Exh.D.G., copy of the order passed by the Magistrate on 11 33‑1998, permitting her to accompany her husband, Exh.D.H. copy of the suit filed on 29‑4‑1998 by her, against her husband for dissolution of marriage and Exh.D.1. copy of the application submitted by her before Judge Family Court for restoration of suit which had been dismissed in default, wherein she had taken the plea that she could not appear to pursue the case as he husband had got her arrested in a criminal case.

9. I have gone through the evidence, examined the record and heard the learned counsel for the parties.

10. As mentioned earlier, the prosecution had failed to produce any eye witness of commission of Zina by both the accused, after the day of occurrence i.e. 22‑7‑1998. Although Shera complainant while appearing at the trial, after repeating the 'facts, given by him in the F.I.R. had mentioned that he had seen both the accused committing Zina in his house, 1‑3/4 years before, the occurrence but on confrontation with the F.I.R. he was not found to have stated so, nor any such thing was written in the application Exh.P.E., submitted by him for registration of the case. That being so it can safely be observed that no occular evidence of commission of Zina, worth the name was produced at the trial. I have observed so, keeping in view also, the fact that the swabs which lady doctor who had medically examined Mst. Naziran on 4‑8‑1998, during her medical examination, were not found stained with semens by the Chemical Examiner. Apart from all what has been noted above, the conviction of the appellant under section 10(2) is not maintainable on account of another important fact on record. In that the learned trial Judge had charged both the conviction under section 10(2) of the said Ordinance, that they had been continuously committing Zina with each other, after the occurrence of abduction i.e. on 22‑7‑1998 and so were liable to be convicted. Learned trial Judge while holding both the accused guilty under section 10(2) of the said Ordinance had utterly failed to take notice that the statement made by the complainant at the trial where‑though he had claimed that he had seen both the accused committing Zina a day before the occurrence, was neither admissible or relevant to the charge framed against thetas. For all the reasons noted above conviction of the appellant under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance and sentence passed thereunder are not maintainable.

11. The only evidence on record on the basis of which Muhammad Ayub had been convicted by the trial Judge for having committed offence under section. 16 of Offence of Zina (Enforcement of Hudood) Ordinance, was the statement made by Muhammad Ali, P.W.7. Apart from the fact that there is no other evidence on record to corroborate his testimony. His statement even otherwise does not inspire confidence because neither he stated that he had inquired from them as to where they were going, nor he had asked them if they were going together or happened to be boarding the bus together by chance. He had also not stated that he had seen any baggage with any of the accused. Had he stated so it could have been corroborated with the allegation levelled by the complainant that the accused had taken away some luggage from his house. Apart from the lack of presence of intrinsic evidence to hold that prosecution had proved the charge against the appellant. The other important fact is that the documents produced by Mst. Naziran Bibi in defence and relied upon by Muhammad Ayub also make the prosecution case highly doubtful. In that there is written evidence on record in the form of documents that Mst. Naziran had appeared before the Magistrate and submitted an application on 5‑3‑1998 i.e. some 4 months before the occurrence of abduction that her husband not only beats her often but also forces her to subject herself for Zina before strangers. Copy of the statement of Mst. Naziran, recorded by the Magistrate in that regard in on record. Copy of the application submitted by the complainant before the Magistrate on 7‑3‑1998 to let his wife i.e. Mst. Naziran to company him and copy of the order passed by the Magistrate on 11‑3‑1998, is also on record. These documents show that some 4 months prior to the occurrence of abduction, Mst. Naziran had approached the authorities and levelled serious allegation of misconduct against the complainant. There is documentary evidence in the shape of certified copies that Mst. Naziran had filed a suit for dissolution of marriage against her husband on 30‑4‑1998 i.e. about 1‑1/4 month, after she had returned to her house from Dar‑ul‑Aman. On record is also copy of an application vide which she had prayed the Judge Family Court to restore the suit for dissolution of marriage, on the ground that she had not appeared on the fixed date to pursue the case because her husband had got her involved in a false case. All these documents are enough evidence to hold that happening of occurrence of abduction alleged by the complainant was highly improbable as there was no possibility that Mst. Naziran being in his house in the month of July, 1998, or on the date of occurrence i.e. 22‑7‑1998. For all the reasons enumerated above, conviction under section 16 and the sentences passed thereunder qua Muhammad Ayub are also not maintainable, following the principle laid for safe administration of justice. His conviction and sentences under section 16 of the said Ordinance are also set aside. Resultantly this appeal is allowed and the appellant is acquitted. He shall be released forthwith if not required in any other case.

12. No appeal has been filed by Mst. Naziran co‑convict of the appellant. Nonetheless benefit of this judgment shall go to her also as it has been held that prosecution had failed to prove the charge of commission of Zina against Muhammad Ayub appellant and Mst. Naziran co‑convict. Consequently she is also directed to be released from jail, if not required in any other case. Her conviction shall be deemed to have been set aside. Reliance in this regard is placed on PLD 1958 (W.P.) Karachi 383, Talib Hussain and another v. The State. In the said case three out of four persons, convicted under section 302, P.P.C., had filed appeal but one of them had not preferred any appeal. The learned Judges having acquitted the three appellants directed that 4th (Waryam) was, entitled to the benefit of this judgment. He was also acquitted. N.H.Q./53/FSC Appeal allowed.