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Criminal Appeal No. 106/L of 1984, decided on 24th January, 1985.

‑‑‑S. 10(2)‑‑Penal Code (XLV of 1860), S. 109‑‑Eye‑witnesses expressing their ignorance about incident of commission of Zina and were declared hostile‑‑Testimony of prosecution witness who saw couple inside quarter not supported by any other witness‑‑Lady Doctor who examined accused lady, not stating in her statement that in her opinion any sexual intercourse had been committed with lady accused‑‑Trial Court relying upon testimony of Lady Doctor and Report of Chemical Examiner while convicting accused persons‑‑Evidence on record not showing that swabs taken by Lady Doctor had been sent to Chemical Examiner‑‑No evidence on record connecting accused with offence‑‑Such Report of Chemical Examiner, not reliable‑‑Accused acquitted in circumstances.

Khan Muhammad Virk for Appellant.

Khawaja Muhammad Asghar for the State,

Date of hearing: 24th January, 1985.

This order shall also dispose of two other connected appeals filed by Muhammad Aslam (Criminal Appeal No. 113/1, of 1984) and Mst. Nusrat Parveen (Jail Criminal Appeal No. 217/1 of 1984), respectively. The appellants Muhammad Ismail and Mst. Nusrat Parveen were convicted by the Additional Sessions Judge, Sargodha, on the 20th of June, 1984 under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 10 years' R.I. with 10 stripes each. They were also fined in the sum of Rs. 2,000. each and in default of payment of fine they were ordered to undergo further 6 months' R.I. each. Muhammad Aslam appellant was convicted under section 109, P.P.C. and sentenced to 10 years' R.I. They have challenged their conviction through the present appeals.

2. The occurrence took place at 12 o'clock in the mid‑night of 23rd and 24^th of June, 1984, in Quarter No. 155/1 of P.A.F. Colony Quarter, Sargodha. It was alleged in a letter addressed to the police by Mehdi Khan, Warrant Officer, P.W.2, that on receiving information about the commission of Zina from Ghulam Hussain, P.W.5 and Muhammad Akram P.W.7 he proceeded to the above‑mentioned quarter to find the appellants Muhammad Ismail and Mst. Nusrat Parveen present therein. The first information report was registered on that letter by Head Constable Sabir Hussain Shah, P.W.1.

3. The Police arrested both the alleged delinquents. Mst. Nusrat Parveen was examined by Lady Doctor Ismat Khatoon, P.W.4 who reported as under vide Exh. P.E./1:

"(1) There was no mark of violence on any part of her body.

(2) Hymen was absent. Vagina admitted two fingers easily. According to her statement she remained married to man for about 10 years and was then divorced due to infertility.

(3) Two vulva vaginal swabs were taken and sent to the Chemical Examiner for detection of semen. The report of Chemical Examiner is Exh. P.G.

(4) In my opinion she is habitual to sexual intercourse."

4. The case was then challaned. The prosecution examined 7 witnesses in all. Sabir Hussain Shah, Head Constable, P.W.1 testified to having registered the F.I.R. on the letter of Mehdi Khan, Exh. P.A. Mehdi Khan appeared as P.W. 2 to state that he on receiving information from Ghulam Hussain P.W.5 and Muhammad Akram P.W.7 that Zina had been committed in Quarter No. 158/1 allotted to Muhammad Aslam, appellant, went to the spot and found two accused there. He then wrote a letter Exh. P.A. to the police. Doctor Muhammad Farooq Khawaja P.W.3 testified that he medically examined Muhammad Ismail and found him fit to commit sexual intercourse. The report of the Lady Doctor Ismat Khatoon, P.W.4 has already been referred to above. Ghulam Hussain, P.W.5 and Muhammad Akram, P.W.7, who were allegedly the eye‑witnesses of the incident, expressed total ignorance about it and were declared hostile. They, however, did not yield any benefit to the prosecution in the cross‑examination. Abdul Aziz, S.I. P.W.6 investigated the matter. The trial Court accepted the prosecution version and convicted and sentenced the appellants as stated above.

5. It is contended by the learned counsel for the appellants that there is no evidence on the record to justify conviction. It is stated that the so‑called eye‑witnesses have denied their knowledge of the allegations. There is no other person to support the prosecution. Mehdi Khan, P.W.2 only saw them in the quarter but this fact was not supported by any other witness. The learned counsel have also referred to the statement of Lady Doctor. She did not say if in her opinion any sexual intercourse had been committed with Mst. Nusrat Parveen. So no one, not even Mehdi Khan, P.W.2 had seen the commission of offence and there is no circumstantial evidence either.

6. The learned trial Court had relied on the statements of Mehdi Khan, P.W.2, Lady Doctor Ismat Khatoon, P.W.4 and the report of the Chemical Examiner, to base the conviction. There is however no evidence on the record to suggest that the swabs, taken by the Lady Doctor Ismat Khatoon, had even' been sent to the Chemical Examiner. How can then the report of the Chemical Examiner be relied upon In this view of the matter, there is no evidence on the record connecting the appellants with the offence and so I have no option but to accept the plea put forth on behalf of the appellants. Their appeals are, therefore, allowed and the conviction is set aside. The appellants shall be released forthwith if not wanted in any other case.

H. A.

Appeals accepted.

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