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Criminal Appeal No. 29‑K and Judicial Criminal Appeal No. 27‑K of 1985, decided on 29th April, 1986.

‑‑‑S. 16‑‑Appreciation of evidence‑‑Evidence on record showing not only animosity between parties but one set of witnesses contradicted materially the other set 'about place of recovery of accused and abduction‑‑Contradiction being such glaring conviction of accused, held, could not be maintained in circumstances.

Sh. Rahman Bakhsh for Appellant.

Abdul Waheed Siddiqui for the State.

Date of hearing: 29th April, 1986.

This order shall also dispose of a connected Criminal Appeal No. 27‑K of 1985, filed by the same appellant from Jail. The appellant was convicted on the 14th of September, 1985, by the learned Additional Sessions Judge, Kotri, under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to three years' R.I., with whipping numbering 7 stripes. He was also fined a sum of Rs.5,000. In default of payment of fine, he was to suffer 8 months' R.I., further. He has challenged his conviction and sentences through the present appeal.

2. The occurrence took place on the 19th of May, 1982 at, about 7‑45 p.m. Faqir Muhammad, the father of the alleged abductee, Mst. Gul Nisa, reported the matter at 9‑00 p.m., to Muhammad Nawaz. A.S.I. Investigating Officer on the same day. He stated that his daughter Mst. Gul Nisa used to visit her 'Phoophi' Mst Zubaida off and on. Ali Mardan, appellant who is a Police Constable at Gidu also used to go there. They developed illicit connections. On the eventful day his daughter Mst. Gul Nisa left the house in the morning by saying that she was going to urinate but did not return for quite some time. The complainant got suspicious and started her search but in vain. His hunch was that she might have been gone with All Mardan appellant. Consequently, he took Parvez and Muhammad Irfan P.Ws. with him and went to Councillor Peer Muhammad Shah P.W. to complain. During the search at about 8‑00 p.m., they came to know at Telegraph Colony that Ali Mardan appellant and Mst. Gul Nisa were shut up in a quarter of Ali Mardan P. W. All went there and saw the two offenders lying on a cot in an objectionable condition. They quietly left the place and went to the Police to report the matter.

3. Muhammad Nawaz, A.S.I., P.W.7, after the registration of the case accompanied the complainant, Peer Muhammad Shah P.W., Ali Mardan P.W. Safdar P.W. and Muhammad Parvez and went to Mahmood Shah Colony. There they took Ali Nawaz Khoso and Muhammad Ali Khoso as Mashirs and went to a katcha built quarter. Its outer gate was having a space from which the interior was visible. They pushed the outer gate and entered in the presence of Mashirs and witnesses. He then found accused appellant Ali Mardan lying on a, cot with Mst. Gul Nisa. According to him, both were wearing clothes. The Police Officer made enquiries from them and demanded the proof of their marriage but they failed. He, therefore, arrested them.

4. Mst. Gul Nisa was medically examined by the lady doctor but she was not produced. Her report Exh. 15 however, shows nothing of a nature that the prosecution might have relied upon. 'The case was then sent up for trial after necessary investigation.

5. The prosecution examined 8 witnesses in support of the case. Faqir Muhammad (father of the alleged victim) P.W. 1, Mst. Gul Nisa, P.W. 2 (the alleged victim) and Muhammad Ali Mashir, P.W. 6 stated that Mst. Gul Nisa was recovered from the quarter of Ali Mardan appellant in a compromising condition. Peer Muhammad Shah, P.W. 3, Muhammad Irfan, P.W. 4 and Muhammad Parvez, P.W. 5, on the other hand, stated that they recovered her from the quarter of Ali Mardan P.W. in a nude condition. Muhammad Nawaz, A.S.I., Investigating Officer, on the other hand, stated that the appellant was recovered alongwith Mst. Gul Nisa from the quarter of Ali Mardan P.W. who was accompanying the raiding party. He further stated that both of them were wearing clothes and thus materially contradicted all the P.Ws.

6. The appellant in his statement under section 342, Cr.P.C., denied all the charges and pointed out his enmity and motive to be involved falsely in the following words:‑

"I had brought Suleman the grandfather of the P.Ws. Irfan and Pervez before the Police as he had committed fraud. I had seen a newly born baby. on the road outside the house of complainant and I had reported this matter to the Police. The Police had called the complainant, as such the complainant was annoyed with me. The complainant has involved me in this false case due to above dispute. I was posted at Gidu P.S. as H. C. and arrested one Bashir on the complaint of Mst. Hayat Khatoon. The I.O., in this case had asked me to release Bashir, but I did not do so, as the F.I.R. was cut. I had arranged a procession against ex‑Councillor Peer Muhammad Shah, therefore, he was annoyed with me. I have been involved in this case falsely. I am innocent."

7. The above evidence would clearly show not only some animosity but that a set of the witnesses contradicted materially the other set. One set stated, as given above, that recovery took place from the house of Ali Mardan P.W. who according to the Investigating Officer accompanied the search party. Others stated the recovery was made from the house of appellant. Again, the father saw the appellant and his daughter naked and, in compromising position and he invited all others to have a look. No one then disturbed the offenders and quietly A went away to the Police in the hope that when they come back with the Police they would catch them red‑handed. The Investigating Officer, who according to the all witnesses reached the spot stated that the offenders w re wearing clothes. He categorically stated that the accused/ appellant was recovered from the quarter of Ali Mardan P.W. (different from Ali Mardan appellant). The contradiction, however, is such glaring that it is not safe to maintain the conviction of the present appellant.

8. We, therefore, allow this appeal, set aside the conviction and sentences and acquit the appellant of the charge. We further direct that the appellant shall be set at liberty forthwith unless he is wanted in any other case.

M.B.A. ‑‑‑‑‑ Appeal allowed.

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