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Criminal Appeals Nos. 129/L of 1982 and 7/1 of 1983, decided on 30th July, 1983.

‑‑‑S. 10(2)‑‑Evidence‑‑Vaginal swabs sent to office of Chemical Examiner, yet no report placed on record by prosecution‑‑Result of swabs, as to what happened to said report and why same had not been part of record, not known‑‑Presumption, held, could be raised against prosecution that said report would not have supported case.

‑‑Ss. 7 & 10(2)‑‑Medical evidence not showing that lady accused was subjected to recent sexual intercourse‑‑Semen on persons or clothes of accused not found‑‑Prosecution witnesses stating that they had merely seen both accused committing Zina with each other, both being naked‑ Word 'Zinc' used in general sense without mentioning anything about penetration, an essential ingredient of offence of Zina‑‑Possibility that accused persons might not had yet committed Zina, held, could not excluded.

‑‑S. 10‑‑Evidence, appreciation of‑‑No witness to occurrence produced from locality‑‑No article from room of occurrence, namely, bulb allegedly burning in room at relevant time, bed‑sheet, cot and two parts of door of room, taken into possession‑‑Accused apprehended red‑handed while busy in committing Zina with each other yet no other proof, except verbal deposition of police officers‑‑Allegation of Zina, held, not established against accused in circumstances and acquitted.

‑‑‑S. 10‑‑Benefit of doubt‑‑Islamic jurisprudence‑‑Prosecution not establishing allegation of Zina against accused beyond reasonable doubt‑ Element of doubt existing at every stage of case‑‑It is well‑established in Islamic Jurisprudence that benefit of doubt must go to accused‑ Accused given benefit of doubt and their conviction and sentence set aside.‑‑[Benefit of doubt].

Mehar Ghulam Ali Mubashar for Appellant (in Criminal Appeal No. 129/1,).

Syed Asghar Hussain Sabazwari and Abdul Latif Ch. for Appellant (in Criminal Appeal No. 7/1).

Muhammad Aslam Uns for the State (in Criminal Appeal No. 7/1).

Dates of hearing: 30th March and 22nd May, 1983.

During the night of 12/13th March, 1981, A.S.I. Ghulam Abbas Shah (P.W. 1) alongwith some Constables was on patrol duty at Bus Stand Khushab. He received secret information that in a nearby Hotel, known as Muslim Hotel, Khushab, man and woman were committing Zina. Accordingly, the police party reached Muslim Hotel and in a room saw through the crevice of the door that a man and woman were busy in committing Zina with each other and both were naked. At that time the light in that room was on and it was due to that light that the occurrence was witnessed by the police party. A.S.I., Ghulam Abbas Shah (P.W.) got the door of the room opened and on seeing the police party both the accused put on their respective clothes. On enquiry it was revealed that the accused were Muhammad Ali and Mst. Jantan. Two minor sons of Mst. Jantan were also found asleep on another cot in the same room. The police arrested both the accused persons and handed them over to another A.S.I. Muhammad Siddique (P.W.), who was present in Ittehad Chowk, Khushab. The said A.S.I. also recorded the statement (Exh. P.A.) of A.S.I. Ghulam Abbas Shah and sent the same to Police Station, Khushab where the formal F.I.R. Exh. P.A./1 was registered by S.H.O. Khurshid Alam. After the completion of the investigation the police challaned Muhammad Ali and Mst. Jantan. They were tried by Mr. Muhammad Ashaq Khan, Additional Sessions Judge, Khushab, who, vide impugned judgment, dated 18‑12‑1982 convicted them under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced each of them to undergo R.I. for 5 years plus whipping numbering 10 stripes each. Muhammad Ali appellant challenged his conviction and sentences through Criminal Appeal No. 129/1, of 1982 while Mst. Jantan filed separate Appeal No. 7/1 of 1983 at Islamabad through her counsel Mr. Asghar Hussain Sabazwari, Advocate and Mr. Abdul Latif Chaudhry, Advocate. The arguments of Mr. Ghulam Ali Mubashar, counsel for Muhammad Ali appellant were heard at Lahore while the arguments of the counsel of Mst. Jantan were heard at Islamabad. Since both these appeals arise out of the same judgment and same set of circumstances they are being disposed of by this judgment.

2. In support of its case the prosecution produced 5 witnesses. A.S.I. Ghulam Abbas Shah (P.W. 1) was on patrol duty alongwith some Constables at Bus Stand, Khushab. On receipt of secret information he went to the Muslim Hotel, Khushab, where he claims to have seen through crevice of the door of the room that the present appellants were committing Zina with each other on one cot while on the other cot two minor sons of Mst. Jantan were sleeping. After he got the door opened he arrested both the accused persons and handed them over to another Police Officer, A.S.I. Muhammad Siddique (P.W. 3), who was also on patrol duty in Ittehad Chowk, Khushab. This police officer after recording the statement of A.S.I. Ghulam Abbas Shah (P.W.) sent the same to the police station where the formal F . I . R . Exh. P . A . / 1 was registered. F.C. Ranbaz (P.W. 2) was accompanying A.S.I. Ghulam Abbas Shah (P.W.) at the relevant time and he also claims to be an eye‑witness of the occurrence. A.S.I. Muhammad Siddique (P.W. 3) is the Investigating Officer in this case. In cross‑examination it is admitted by him that there is no mention of any bulb being on in the room at the time of occurrence in his inspection note. It is further admitted by him that there is no mention in his inspection note or in the site plan that the P.Ws. saw the occurrence through the holes of the door. He did not take into possession the cot on which Zina was committed nor he took into possession any Chaddar or other clothes of the accused. He did not examine the cot if it had any semen thereon. This witness has also admitted that Exh. P.E. does not bear the F.I.R. number which is an inadvertent omission. It is further admitted by him that Exh. P.D. bears F . I . R . number in ink while the other contents of this documents are in pencil. He, however, denied the defence suggestion that in Exh. P. D. F.I.R. number was mentioned afterward. This witness also denied the defence suggestion that one Mukhtar Ahmad, A.S.I. had been serving with the Investigating Officer and that the father of said A.S.I. Mukhtar Ahmad was assassinated and Muhammad Ali accused was a D.W. in that murder case and that he had falsely involved the accused in this case at the instance of said A.S.I., Mukhtar Ahmad. He further denied the defence suggestion that he had falsely arrested the accused from the Bus Stand. Doctor Muhammad Afzal (P.W. 4) medically examined Muhammad Ali accused on 13‑3‑1981 and found him physically fit to perform sexual intercourse. Lady doctor Shamim Burlas (P.W. 5) on 13‑3‑1981 examined Mst. Jantan accused and found the following:‑‑

(1) Hymen was absent.

(2) Vagina was loose.

(3) Labia majora black and loose.

(4) Breast well‑developed and pendulous.

From the above data in my opinion she was used to sexual intercourse.

There were no marks of struggle. Two vaginal swabs were taken for chemical examination, M.L.R. is Exh. P.F.

3. In his statement recorded under section 342, Cr.P.C. Muhammad Ali accused denied the prosecution allegation. When asked why this case was made against him and why the P.Ws. had deposed against him, he stated as under:‑‑---

"One Ramzan from my village was murdered whose son Mukhtar Ahmad was A.S.I. I appeared as a D.W. in that case of which Mukhtar Ahmad A.S.I. was annoyed. Mukhtar Ahmad is a colleague of Muhammad Siddique A.S.I. and they have been together in P.S. Saddar Sargodha. The P.Ws. have, therefore, deposed against me at the instance of Mukhtar Ahmad and Muhammad Siddique."

Mst. Jantan accused also made a similar statement and alleged that due to enmity of Muhammad Ali accused with the P.Ws. they had deposed against her. The accused persons, however, produced no evidence in defence.

4. The trial Court convicted and sentenced the accused appellants as mentioned above.

5. Hence this appeal.

6. I have heard at length the learned counsel for the parties and have also perused the entire material available on the record.

There are certain admitted features of this case. Although two vaginal swabs were taken by the lady doctor and sent to the office of the Chemical Examiner for detection of a semen yet no report of the Chemical Examiner has been placed on the record by the prosecution. The learned State counsel does not know the result of the said swabs and is not in a position to state as to what happened to the said report of the Chemical Examiner and why it has not been made part of the record. He, however, frankly admits that in the circumstances the presumption can be drawn against the prosecution that the said report would not have supported the prosecution case. The medical evidence also does not help the prosecution. As mentioned above Mst. Jantan accused was medically examined by the lady doctor Shamim Burlas (P.W. 5) on 13‑3‑1981 but her M.L.R. is silent about the commission of any Zina with her by co‑accused Muhammad Ali. In other words, the evidence of the lady doctor does not show that Mst. Jantan, accused was subjected to recent sexual intercourse. Another admitted circumstance in this case is that neither the lady doctor Shamim Burlas (F.W.5) found any semen on the persons or clothes of the examinee Mst. Jantan nor Doctor Muhammad Afzal (P.W.4) found any semen on the persons or B clothes of Muhammad Ali accused. The learned State counsel admits that if both the accused persons had committed sexual intercourse and Muhammad Ali accused had discharged then some signs of such discharge in the form of presence of semen on the person or clothes of both the accused persons should have been found. However, his stand is that Muhammad Ali accused may not have discharged although may have penetrated. It is an admitted fact that no prosecution witness has said anything about penetration. A.S.I. Ghulam Abbas Shah (P.W. 1) and F.C. Ranbaz (P.W. 2) who claim to be eye‑witnesses of the occurrence, have merely stated that they saw both the accused persons busy in committing Zina with each other, both being naked. It is clear that the use of the word Zina here has been used in general sense without mentioning anything about penetration which is essential ingredient of the offence of Zina. The possibility that the accused persons may not have yet committed sexual intercourse cannot be excluded. The absence of semen on any part of the persons and the clothes of both the accused persons is a circumstance which is also being used by the defence. According to the prosecution, the secret information received by A.S.I. Ghulam Abbas Shah (P.W.1) at Bus Stand Khushab was that both the accused persons were busy in committing Zina in a room in Muslim Hotel. If the informer had seen the accused persons committing Zina and then he went in search of the police and found the police party at the Bus Stand and conveyed this information to the police party, it must have taken some time by the police to reach the place of occurrence and then saw both the accused persons still committing Zina then during this, at least one discharge of Muhammad Ali accused would be natural consequence or otherwise the act of Zina could not take so long. Another astonishing feature of the case is that although the occurrence took place in a thickly populated area yet the prosecution has produced no independent witness from the public, The prosecution had cited Muhammad Yaqoob and Muhammad Shafi of Muslim Hotel as witnesses but they were given up as having been won over. The result is that the only witnesses produced and relied upon by the prosecution are A.S.I. Ghulam Abbas Shah and F.C, Ranbaz. According to the defence counsel, even the statements of these two police officials are full of discrepancies and contradictions and do not inspire confidence. In any case it is not denied even by the State counsel that the statements of these two police officials are not corroborated or supported by any independent evidence, oral or documentary. The contention of the State counsel, however, is that the direct ocular evidence produced by the prosecution requires no corroboration and has been rightly believed by the trial Court especially when no enmity or motive for false implication has been alleged by the defence. It is further an admitted fact that no article from the room of occurrence was taken into possession namely, bulb allegedly burning in the room at the relevant time, the bed‑sheet, cot and two parts of the door of the room. It is rather surprising that although according to the prosecution version both the accused were apprehended red‑handed while busy in committing Zina with each other yet no other proof has been furnished except verbal deposition of A.S.I., Ghulam Abbas Shah and F.C. Ranbaz. The defence has also pointed out that on the applications submitted by the Investigating Officer for medical examination of the two accused persons, in one the number of F.I.R. is missing while the other application is written with a pencil but number of F.I.R. has been inserted with ink. It is alleged by the defence that the F.I.R. was registered after the medical examination of the accused persons.

7. After minute scrutiny of the facts and circumstances of the case I find that the prosecution has not established the allegation of Zina against the appellants beyond reasonable doubt. The element of doubt exists at every stage of the case. It is well‑settled principle of Islamic Jurisprudence that the benefit of doubt must go to the accused. Accordingly, while giving benefit of doubt to the accused persons, I accept this appeal, set aside the convictions and sentences of Muhammad Ali and Mst. Jantan accused appellants and acquit them of the charge. They shall be released forthwith if not required in connection with any other case.

M. A. K. /114/F Appeals allowed.

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