' These two connected jail criminal appeals - one filed by Shahid Iqbal son of Allah Dad and the other filed by Mst. Shahida Parveen, wife of Muhammad Yaqoob, are directed against the judgment dated 1-1-2002 passed by learned Additional Sessions Judge, Bahawalpur whereby he has convicted them under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, and sentenced them to seven years imprisonment each with fine of Rs,20,000 each or in default of payment of fine further six months' R.I. Each. The benefit of section 382-B, Cr.P.C. Has also been given to the appellants.
2. Briefly stated the case of prosecution as disclosed in F.I.R. Exh.P.B./1 lodged on 11-6-2001 on the application of Muhammad Yaqoob, complainant is to the effect that he was married to Mst.
Shahida Parveen, about one and a half years before and had got one son born out of the said wed-lock. While living at Maqbool Colony, his wife Mst. Shahida Parveen developed illicit relations with Shahid lqbal son of Allah Dad. When he came to know about the same he advised his wife to refrain herself but she still kept on meetings with him. He stated that about three months before he alongwith his wife and son shifted his residence to his father's house at Bhattha No, 1 . On 30-4-2001 he went away for his work early in the morning. When he returned to his house in the evening he found that his son and wife were missing. He alongwith his brother Idrees started her search. During the search, Bashir Ahmad and Muhammad Ashraf told him that they had seen his wife going alongwith Shahid on a bicycle toward the city side. Thereupon he went to the house of Shahid and demanded return of his wife and son. He promised to do so but later on refused. He alleged that on checking of his house in Maqbool Colony he found that all households were missing. He alleged that Shahid had abducted his wife for illicit intercourse. He requested for legal proceedings as required. After registration of the case P.W.5 Muhammad Abdullah started investigation of the case. He took into possession Nikah "Perth P.1" produced by the complainant. He recorded statements of P.Ws. Under section 161, Cr.P.C. On 14-6-2001 he arrested Shahid lqbal, accused from Lari Adda and obtained his physical remand and interrogated him. He disclosed that he abducted Mst. Shahida Parveen and got her lodged in Darul Aman, Bahawalpur when the complainant lodged F.I.R. Against him. He made application Exh.P.E. To Allaqa Magistrate for interrogation of Mst.
Shahida in Darul Aman. After having been permitted to do so he interrogated her in presence of staff of Darul Aman. He recorded her statement. Thereafter he added section 10(2) of the Ordinance and got her medically examined. After completion of investigation they were challaned to face trial. They were formally charged on 5-9-2001. They did not plead guilty and claimed trial.
3. At the trial prosecution examined P.W.1 Mst. Musarrat Riaz who was Superintendent, Government Darul Aman, Bahawalpur. She deposed that according to her record Mst. Shahid Parveen came to Darul Aman on 11-6-2001 by the order of Judicial Magistrate, Bahawalpur and she was produced before him on 19-6-2001. She allowed P.W.5 to interrogate her. According to the orders of Judicial Magistrate, P.W.5 recorded her statement which was read over to her and she thumb-marked the same in her presence. That statement is Exh.P.A., which bears her signature also. On 19-6-2001 she produced Mst. Shahida Parveen before Judicial Magistrate wherefrom she was sent to judicial lock-up. P.W.2 is Muhammad Yaqoob. He is the complainant who reiterated his statement as mentioned hereinabove. P.W.3 is Muhammad Ashraf. He saw both the appellants/accused going on bicycle towards city. He informed the complainant accordingly as he was searching her. P.W.4 is Muhammad Idrees. He is brother of the complainant who joined him in search of his wife. He made deposition similar to that of the complainant. P.W.5 is Abdullah, A.S.-I. He investigated the case and arrested the appellant/accused Shahid Iqbal on 14-6-2001. He also recorded statement of Mst.
Shahida Parveen in Darul Aman. He recorded statements of P.Ws. In the light of statement of Mst.
Shahida he added section 10(2) of the Ordinance. He, submitted application before Allaqa Magistrate for summoning the appellant/accused Shahida from Darul Aman. He also made application for medical examination of Mst. Shahida who refused to be medically examined.
Thereafter he lodged her in judicial lock-up. P.W.6 is Dr. Rao Muhammad Javed Akhtar. On 18-6- 2001 he medically examined _Shahid Iqbal for potency. He opined that he was physically fit to perform sexual intercourse. P.W.7 is Jamshaid Akhtar, Inspector. He recorded formal F.I.R. On the basis of application Exh.P.B.
4. Both the appellants/accused made statements under section 342, Cr.P.C. Wherein they denied the allegations and pleaded innocence. The appellant/accused Shahida Parveen while responding to question, "why this case against you and why the P.Ws. Have deposed against you? Made detailed statement in the following words:-- "I am illiterate. I married to complainant and out of said wedlock a son was born. The complainant is an indolent person and .Oftenly maltreated me and did not maintain me. Prior to 5-6 days of the registration of instant case complainant deserted me out of his house whereupon I filed a suit for dissolution of marriage against the complainant before Family Court on 9-6-2001. On the same day the complainant alongwith his companions wanted to abduct me whereupon I filed a private complaint on 11-6-2001 against the complainant and his companions which is pending adjudication in the Court. Therefore, I took shelter in Dar-ul-Aman to myself. Due to filing of suit for dissolution of marriage against the complainant he got registered this false case against me. Even neither I know co-accused Shahid Iqbal nor I have any relationship with him. For so many times the complainant offered me that if I withdraw the suit for dissolution of marriage, he will not pursue the case. The police arrested me from Dar-ulAman without any justification with the connivance of complainant. I did not make any statement before the police in Dar-ul-Aman in the presence of Superintendent Dar-ul-Aman or any other person nor the same was read over to me by any one.
However, police obtained my thumb-impression on some papers. If any statement is attributed to me the same is false and concocted one. The complainant is inimical towards me due to filing of suit for dissolution of marriage. One of the P. Ws. Is his brother and other is his close friend, so they have deposed against me falsely."
' She also made statement on oath in the following words:-- ' I am illiterate woman. I am wife of Muhammad Yaqoob. Firstly my husband was living with me amicably. He on my demand of maintenance started beating me. My husband is idle and indolence. My husband ousted me from his house after giving me sever heating before 5-6 days of registration of instant case. So I filed suit for dissolution of marriage against him. So to pursue that suit for dissolution of marriage Muhammad Aslam, Idrees and complainant Yaqoob came to me and extended threats of murderous tome. Then I went to the house of my maternal-aunt (Mammani). After ousting by complainant Yaqoob from his house I had been living in the house of abovesaid maternal-aunt. I remained confined in Dar-ul-Aman. As I was apprehending fear from the hands of my husband Yaqoob. Police came at Dar-ulAman and obtained my thumb- impression upon some paper. The same was not read over to me by any one. Even now my husband and his brother asked me to withdraw suit for dissolution of marriage filed against and he will stop pursuing this case against me. I was neither subjected nor I committed Zina with anyone and it is all false allegation. I do not know Shahid accused co-accused Muhammad Yaqoob complainant got registered this false case."
' She tendered in evidence copy of plaint (Exh.D.C.) of suit for dissolution of marriage, copy of interim order (Exh.D.D.) passed by learned Judge, copy of private complaint (Exh.D.E.) under section 506/34, P.P.C. Copy of statement (Exh.D.F.) made in the complaint and copy of statement (Exh.P.G.) made before Allaqa Magistrate for lodging in Darul Aman and closed her defence.
5. The appellant/accused Shahid Iqbal in his statement under section 342, Cr.P.C. While putting a question "why this case against you and why the P.Ws. Have deposed against you? He responded in these words:-- "I am a respectable citizen. I had not developed any illicit liaisons with Mst. Shahida Parveen. Even 1 had not known Mst. Shahida Parveen co-accused prior to registration of instant case. I did not abduct Mst. Shahida Pcrveen. I have been involved in this case falsely at the instance of one Zafar Iqbal Councillor who is my opponent and has close friendly terms with the complainant of instant case. The police in connivance with the complainant and at the instance of Zafar lqbal, Councillor involved me in this case falsely. I neither promised with any person for the return of hand of Mst.
Shahida Perveen to the complainant nor any one approached me for the return of Mst. Shahida the alleged co-accused. Even I was not aware of the occurrence of instant case."
' He declined to make statement on oath or produce any evidence in his defence.
6. 1 have heard learned counsel for the parties and have perused the record with their assistance.
Learned counsel for appellant Shahida Parveen submitted that there is great delay in lodging of the F.I.R., that there is no eye-witness of commission of Zina and there is no medico-legal report.
Learned counsel for appellant Shahid Iqbal also adopted his arguments. Learned counsel for the State supported the impugned judgment.
7. I have gone through the evidence on record in the light of submissions made by learned counsel for the parties. It transpires from the record that the occurrence allegedly took place on 30-4-2001 but report in that respect was lodged after II days. The distance from place of occurrence to police station shown in the F.I.R. Is four kilometers. In circumstances of the case there should have been no delay whatsoever. The reason given for delay is not plausible. He was informed by Muhammad Ashraf, P.W.3 and another witness namely Bashir Ahmad on the said day and he had approached the appellant/accused Shahid Iqbal accordingly for return of his wife. It does not appeal to sound reason that he should have gone back to his house without bringing back his .Wife. On refusal of the appellant/accused Shahid Iqbal, the natural course for him was to report the matter to police immediately. In circumstances there was no apprehension to the life of Mst. Shahida Parveen who allegedly had developed illicit relations with Shahid Iqbal. Appellant/accused. It really seems unnatural for a husband to delay report to police for such a long time. Although mere delay per se is not sufficient to disbelieve the case of prosecution and falsify the testimony of witnesses but there are other circumstances, which are to be taken into consideration and giving due weight make the case highly doubtful. The record reveals that Mst. Shahida Parveen had filed suit for dissolution of her marriage on 9-6-2001, which is two days before lodging of F.I.R. By the complainant. The plaint is Exh.D.C. The contents of that plaint fully supports the defence plea taken by the said appellant in her statements made under sections 342 and 340(2), Cr.P.C. Reproduced hereinabove. She has also relied on another complaint Exh.D.E. And has duly produced the same in her defence. That is the complaint made by her on 11-6-2001 before Allaqa Magistrate, Bahawalpur.
Interestingly this is the same date when the complainant lodged F.I.R. At police station. She has also submitted in defence her statement Exh.D.F. Made before Allaqa Magistrate in that complaint. She also submitted copy of her statement made by her on the same day before Allaqa Magistrate for lodging her in Darul Aman, that statement is Exh.D.G. All these documents fully supported the version made by her in her defence. The only other evidence against her is the statement allegedly made by her in Darul Aman. However, she has denied that she had made any statement in Darul Aman. She alleged that police had come in Dar-ul-Aman and had obtained her thumb-impression upon some papers and that papers were never read to her by any one. P.W.7 and P.W.1 are at variance in respect of the same. While P.W.S deposed that he recorded that statement in presence of Musarrat Riaz, Superintendent, P.W.1 Musarrat Riaz herself stated that the same was not recorded in her presence. The other witness namely Muhammad lqbal, Chowkidar in whose presence the said statement was allegedly recorded has not been produced. The benefit of doubt, in circumstances, must go to her. Moreover, the only other evidenced is that of the P.W.3 who allegedly saw both the appellants/accused going on bicycle. He is the Vajtaker witness. In cross- examination he stated that at that time Shahida Parveen was with covered face when he saw her.
In his examination-inchief he deposed that he had told that one beard man Shahid Iqbal was taking away his wife. This statement besides being shaky in nature reveals commission of no offence to bring the case of prosecution under the mischief of section 10(2) of the Ordinance. There is no other evidence on record to show that somebody had seen both the appellants/accused committing Zina with each other. Even about their living together also, no evidence has been brought on record by the prosecution. There is also no MLR or Chemical Examiner's report to support the allegation of Zina. She was not recovered from the company of appellant/accused Shahid Iqbal even, instead she was interrogated in Darul Aman and therefrom she was shifted to judicial lock-up. In this view of the matter I have come to the conclusion that this is a case of no evidence and the prosecution has not been able to bring home guilt of both the appellants/accused.
8. Consequently, for the reasons stated above, I allow these appeals, set aside conviction and sentences of appellants Shahid Iqbal and Mst. Shahida Parveen and acquit them of the charge.
They are in jail and they shall be released forthwith if not wanted in any other case.