' ZAFAR PASHA CHAUDHARY, J.--- This judgment will dispose of Criminal Appeal No,125/L of 2003 on behalf of Mohsin Saleem and Criminal Appeal No,158/L of 2003 on behalf of Shafqat alias Balli as both arise out of common judgment, dated 31-3-2003 passed by learned Additional Sessions Judge, Gujranwala whereby Mohsin Saleem was convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) read with section 109, P.P.C. And sentenced to undergo imprisonment for life with fine of Rs,2,00,000, in default to suffer six years'. R.I. On recovery, half of the amount of fine to be paid to the infant daughter of Salma Bibi, victim. Shafqat alias Balli was convicted under section 11 of the Ordinance and sentenced to suffer imprisonment for life with fine of Rs,1,00,000, in default thereof to suffer six months' R.I. He was also convicted under section 10(2) of the Ordinance and sentenced to undergo ten years' R.I. With fine of Rs,50,000 in default to suffer three years' R.I. Both the sentences were ordered to run concurrently. On recovery, half of the amount of fine to be paid to the infant daughter of Mst. Salma Bibi.
2. During course of preliminary hearing of the appeals, it was observed that Sohail Haider, third co- accused of the appellants had been acquitted. Considering that the reasons assigned by the learned trial Judge in support of the acquittal of Sohail Haider are not sound and tenable, Suo Motu Notice No,14/I of 2004 was issued to him. All the three matters have come up for hearing together.
3. Brief facts relevant for disposal of the appeals and suo motu notice as revealed from the application of Muhammad Nazir, father of Mst. Salma Bibi aged about 12 years are that she was student of Jinnah Foundation School and was studying in Class VII. On 5-1-2002 Mst. Salma went to the school but did not return. She was searched. It was suspected that Salma had been abducted by Shafqat alias Balli who was an employee of Mohsin Saleem, appellant. Mohsin Saleem was approached. He promised that he will get the girl retrieved. The complainant contacted Mohsin Saleem consistently but he kept on postponing the matter on one pretext or the other. Ultimately Mohsin Saleem refused to accede to the complainant's request. Case F.I.R. No,36 of 2002 was got registered with Police Station Qilla Deedar Singh on 16-2-2002 through an application by the complainant stating therein that Mst. Salma had been abducted on 5-1-2002 by the said accused persons. Usual investigation ensued during which it transpired that Mohsin Saleem had removed Shafqat alias Balli from his service. According to prosecution, Mst. Salma was made to enter into Nikah with Sohail Haider. Pursuant to her Nikah she lived with Sohail Haider and performed her marital obligations. During that period, Mst. Salma got conceived and ultimately gave birth to infant daughter. On completion of investigation, Mohsin Saleem along with Shafqat alias Balli as well as Sohail Haider were challaned to the Court. Mst. Salma Bibi was also found guilty for committing Zina. A separate challan was submitted against her.
4. The trial was entrusted to. Mr. Parvez Ismail Joya, Additional Sessions Judge, Gujranwala who framed charge against Shafqat alias Mohsin Saleem and Sohail Haider, Shafqat and Mohsin Saleem were charged under section 11 of the Ordinance. Shafqat and Sohail Haider were charged under .Section 10 of the Ordinance for committing Zina with Mst: Salma Bibi. Mohsin Salem was charged under section 109, P.P.C. For instigating and abetting his said co-accused for abduction of Mst. Salma Bibi. As all the accused pleaded not guilty, the trial commenced where the prosecution examined four witnesses in all.
' P. W.1. Muhammad Nazir is the complainant. He reiterated the contents of his application moved before the police. He repeated the allegation that his daughter had been abducted by the accused persons for immoral purpose. Next is P.W.2 Dr. Ghulam Sarwar. He examined Sohail Haider aged about 24 years as well as Shafqat alias Balli who too aged about 24 years. Both the accused were found to be potent. P.W.3 is Lady Dr. Roohi Yasmeen. She medically examined Mst. Salma Bibi. Her age was given as 17 years. On physical examination, she was found as lactating. She gave birth to a full-grown baby about two months back. P.W.4 is Muhammad Irshad, S.-I. He carried out investigation, arrested Mohsin Saleem on 9-5-2002 and Sohail Haider on 15-6-2002. Shafqat alias Balli was arrested on 15-3-2002. After completion of the investigation, he sent up all the aforesaid accused persons to Court to face trial.
' The prosecution after examining the aforesaid four witnesses comprising of the complainant, two doctors and one Investigating Officer closed the prosecution case.
5. Mohsin Saleem aged about 41 years was examined under section 342, Cr.P.C. He pleaded his false implication and added that he had been declared innocent by the Investigating Officer.
Shafqat alias Balli stated that he had been involved in this case just on account of suspicion and pleaded his, complete innocence. Sohail Haider accused came forward with the plea that he had been involved in the case although there was no incriminating evidence against him.
6. It would be pertinent to point out that before hearing the arguments in the appeals, it was realized that during course of abduction of Mst. Salma Bibi a female child had been born to her. It was the accused persons especially Sohail Haider who came forward with a vague and incomprehensible plea of false implication. He did not explain as to why and how the daughter was born. Legitimacy of a child has always been considered to be of utmost importance by this Court. If the child is allowed to be grown up as such and is treated as illegitimate then the stigma carried by him or her would obviously be more aggravated and remain harmful to the child moreso when he or she further grows. In our society an illegitimate child is treated as a detestable and not accepted as genuine member of the society. In order to assess and ascertain as to who would be father of the child, Sohail Haider was called upon to explain and clarify his position viz. Mst. Salma the alleged abductee and her female child. Sohail Haider made a statement before this Court on 17-3-2005 to the following effect:-- "Mst. Salma Bibi is my legally-wedded wife. Female infant Areeba aged about three years is my daughter born out of wedlock in between myself and Mst. Salma Bibi, my wife."
' Nikah Nama in between Mst. Salma Bibi and Sohail Haider purportedly performed on 22-1-2002 and duly registered in Ward No,G-10/3, Islamabad bearing the signatures of Maulana Muhammad Hassan Turabi, Imam Masjid Hassan, situated in G-10/4, Islamabad. As per statement of Sohail Haider, he supported the Nikahnama present on the file and adds that infant Areeba daughter of Salma Bibi may be treated as her legitimate child. Although the question of legitimacy or otherwise of the infant child is not directly in issue before us because cognizance has been assumed by the Court of the above noted appeals simply to determine the guilt or innocence of the appellants. But as referred to above the question of legitimacy of the infant is of vital importance, therefore, statement of Sohail Haider has .Been obtained and observations have been made accordingly.
7. The learned counsel appearing in support of the appeals, before addressing arguments have stated at bar that both' the appellants have effected compromise, with the complainant and the victim. It has also been stated that both the complainant and the alleged victim have been adequately compensated monetarily. The complainant along with his counsel is present in Court.
Both the complainant and the learned counsel have endorsed the statement made by the learned counsel on behalf of Mohsin Saleem and Shafqat alias Balli.
8. It may be true that the parties have- arrived at some settlement in between them but the offences whereunder the appellants have been convicted are not compoundable. Mere compounding of the offence or effecting compromise by the parties would not by itself be sufficient to pass any verdict in the appeals. Learned counsel for the appellants has therefore, been asked to address arguments on the merits of the case. The learned counsels have come up with the brief arguments contending that the prosecution has examined only four witnesses. P.W.1 Muhammad Nazir is the complainant. He admittedly is not a witness either of the alleged abduction or to the commission of Zina. He moved an application before the police narrating various facts, which had been acquired by him during course of the search. Whatever has been stated by him would be treated as hearsay evidence. Hearsay evidence is not even admissible in evidence unless the person from whom the complainant has heard the same is not examined as a witness. According to the appellant's counsel, his statement is, therefore, of no help to the prosecution. As regards the medical evidence, that too does not in any manner advance the case of the prosecution. As per medical evidence both the appellants have been found to be potent and as per physical examination of Mst. Salma Bibi, she was found to have given birth to a child. The appellants have been convicted under sections 11 and 10(2) of the Ordinance. Mere pregnancy of a woman or her giving birth to a child thereafter, cannot by itself be treated as sufficient evidence to prove the guilt of the alleged offender. The learned trial Judge has mainly based the conviction on the fact that Mst. Salina got conceived and ultimately gave birth to a child. It has therefore, been inferred that she must have committed sexual intercourse. The fact thaf she committed Zina with the appellant within the meaning of the Ordinance cannot he held to have been conclusively proved through this solitary evidence. It would, therefore, be unsafe to sustain the conviction on the strength of this evidence. In nutshell there is no evidence sufficient to warrant conviction of both the appellants Mohsin Saleem and Shafqat alias Balli. The benefit of doubt in any case has to be extended to the accused persons.
9. By taking stock of all the aforesaid facts and circumstances as well as the prosecution evidence, we are of the view that the appellants' conviction cannot be maintained under either of the c arges. The apieals are therefore, allowed. The appellants have already en acquitted vide the short order, dated 23-2-2006. This judgment has been rendered to supply reasons to the said short order.
10. Before parting with the judgment, it would be pertinent to mention that during course of hearing of appeals, Mst. Salma and her father who were present in the Court expressed their reservation to the Nikahnama. They both prayed that Sohail Haider may release Mst. Salma Bibi from his acclaimed wedlock. Sohail Haider conceded and placed on file copy of Talaqnama by affixing his thumb-impression and also by subscribing his signatures. After Sohail Haider has pronounced the Talaq he also undertakes to fulfil the legal formalities in this regard. Mst. Salma Bibi and Muhammad Nazir complainant feel satisfied that their demand of getting release from Sohail Haider has been fulfilled.
11. In view of the acceptance of the appeals on behalf of Mohsin Saleem and Shafqat alias Balli, there remains no reason to proceed with the suo mow notice. Therefore, suo motu notice issued against Sohail Haider is accordingly discharged. All the three matters thus stand disposed of.