' HAZIQUL KHAIRI, C.J.--- This appeal is directed against the judgment, dated 4-5-2005, passed by the learned Additional Sessions Judge, Jhang, whereby appellant Waqas Ali alias Waqas Ahmad son of Rustam Ali was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the said Ordinance") and sentenced to undergo seven years' R.I. The appellant was extended benefit under section 382-B, Cr.P.C.
2. Facts of the case, briefly, stated are that complainant Arif lodged complaint, Exh. P. E., inconsequence whereof F. I . R . Exh. P. E. /1, was registered at Police Station Saddar Jhang on 18-6- 2002 stating therein that on 17-6-2002 at about 11-00 a.m. Her minor daughter Sobia, aged six years, informed him that appellant Waqas Ali alias Waqas Ahmad had forcibly taken away her sister Mst. Farhana Parveen, aged about 15 years to his house. The complainant along with Haji and Sajjad went to the said house where they heard noise of weeping of Mst. Farhana Parveen in the middle room of the house and saw through the hole of the door appellant committing Zina with her. He and his companions pushed the door open but the appellant fled away. Mst. Farhana Parveen was lying in naked condition on a cot in the room and the complainant made her put on her clothes.
3. The prosecution in support of its case examined 9 witnesses. P.W.1 Dr. Allah Bakhsh Chaudhary, Medical Officer medically examined appellant Waqas Ali alias Waqas Ahmad and found him potent to perform sexual intercourse. P.W.2 Dr. Kaneez Zohra, S.M.O. Medically examined Mst.
Farhana Parveen on 19-6-2002 and found that her hymen had got old tears, vagina orifice admitted two fingers easily and there was no mark of violence on any part of her body. According to her Chemical Examiner's Report, Exh.P.D., swabs were stained with semen and in her opinion Mst.
Farhana Parveen was used to sexual intercourse. P.W.3 Abdul Majeed, Constable No,1106 delivered a sealed phial and envelope in the office of the Chemical Examiner on 11-7-2002. P.W.4 Rab Nawaz, Head Constable No,1004 kept sealed envelope and phial in safe custody in Malkhana. P.W.5 Muhammad Arif, complainant reiterated contents of his complaint, Exh.P.E., which was drafted by a College student. In his cross-examination he explained the delay of one day in lodging the complaint and stated that the mother and relatives of the appellant had approached him to beseech the appellant of his crime to which he did not agree. P.W.6 Mst. Farhana Parveen, victim, deposed that she and Mst. Sobia, her younger sister, were going to their house, when they passed near the house of Waqas, he forcibly took her into his "Haveli" and committed Zina-bil-Jabr with her in the middle room of his "Haveli". She further stated that she left her house at about 10/11-00 a.m.
To go to the house of her cousin which was at a distance of two miles and the appellant caught hold of her at about 10-00 a.m. In her cross-examination she denied a suggestion that her father, Sajjad and Haji wanted to sell her. P.W.7 Mst. Sobia, aged now about 8 years, corroborated the version of her sister, P.W.6 and was declared a competent witness as she understood the questions put to her. P.W.8 Muhammad Sarfraz, A.S.-I. Had interrogated the appellant after pre-arrest bail and stated that the appellant produced as many as 15 persons including one Adil Farooq in his defence but he did not take down the statement of any of them. P.W.9 Muhammad Afzal, A.S.-I. Is Investigating Officer of the case.
4. In his statement recorded under section 342, Cr.P.C. The appellant denied the allegation and pleaded innocence. In answer to the questions as to why this case was lodged against him and why the P.Ws. Have deposed against him he gave the following answer:-- "I am innocent.. This case against me has been lodged by Farhana's father at the instigation of my cousin Arif, who is his employer. I have a business dispute of poultry farm. Later I set up my own independent business. The are developed a grudge against me. Sajjad and Haji P.Ws. Are related to Arif and father of Farhana who is a servant of my said cousin."
' He also took the following plea:-- "I am innocent. Farhana appeared before Mr. Sajid Mehmood Sheikh, Judicial Magistrate, Shorkot on 8-7-2002 and made a statement that she was given in marriage by her father to Pervaiz in her minority. She was wedded to said Pervaiz. Her mother had died and she was living with her maternal-grandmother. Farhana further stated that Arshad, her brother and Haji, Sajjad and Arif P.Ws. Took her from her grandmother's house and they had a secret talk and got her boarded on a car. She also told that she raised an alarm and escaped after opening the door of the car. They gave her threats to kill her.
' I have been sued by my cousin Arif and the suit is pending decision in the Court of Mr. Salah-ud- Din, Additional District Judge, Jhang, where the next date of hearing is 9-3-2005. My cousin managed my arrest by the police. I instituted a suit for permanent injunction against him in the Court of Mr. Aman Ullah, Civil Judge, Jhang where the next date of hearing is 7-3-2005."
5. The accused produced Buland Khan and Adil Farooq in hi t defence to make out his plea of alibi.
D.W.1 Adil Farooq deposed that the accused had stayed with him at Faisalabad on 16 and 17 June, 2002 and returned on 19-6-2002 in the evening. His cousin Arif had manipulated the registration of case against him in collusion with the complainant. He deposed that the next day he came to Jhang with the appellant. According to him there was a grudge which Arif was nursing against the appellant on account of business and he made an attempt to prevail upon the complainant and the cousin to withdraw this case because it was a false case but they did not agree. In his cross- examination he told that Waqas accused ran his own poultry farm but stated that Arif and Waqas were partners in this farm. There was a money dispute between them but there was no litigation between them the appellant came to him at Faisalabad to see him and do some business but he was away to the market at Faisalabad. He denied that complainant had ever been an employee of his cousin. The appellant stayed for three days at Faisalabad but did not see anybody else.
6. D.W.2 deposed that the accused had obtained a return pass from him. This, witness is Manager New Khan Bus Company and told that the appellant went to Faisalabad on 16-6-2002 and returned on 19-6-2002. He had a dispute with his cousin who had got registered a case against him. In his cross-examination S.S.P., the witness deposed that Tariq Hameed and Khalu of the accused had asked him to issue a pass to the appellant. He admitted that if one goes from Ayub Chowk to Satellite Town Jhang where the accused resided at the time of occurrence by hiring a Rickshaw. He would pay Rs,15 or 20 or 25.
7. Here it will be advantageous to reproduce an extract from the deposition of P.W.8 Muhammad Sarfraz, A.S.-I. Who was investigating the case:-- "On 27-8-2002 the accused appeared before me on interim bail along with 7 persons to his support. I recorded the version of the accused on that day. According to this version, the accused had jointly set up a poultry farm with one Arif (not the complainant) who is his cousin. He also told that said Arif started practising fraud and the accused had dissolved his partnership with him. He further told that the accused had demanded the repayment of some money from his said cousin Arif. He further told that Arif complainant is a servant of his cousin. It is correct that accused further told that on the day of occurrence, he had gone to Faisalabad to see Adil Farooq. The accused had also told that he returned from Faisalabad after three days. The accused had further told that his cousin Arif had influenced Arif complainant to registei a false case against him. The accused had also offered to prove his presence at Faisalabad during the said three days. It is correct that said Adil Farooq had stated before me in my interrogation and investigation that the accused had been with him at Faisalabad from 16-6-2002 to 18-6-2002. Syed Zameer Hassan, Buland Khan, Wajid Ali Shah, Ghulam Shabbir and 3/4 other persons joined the investigation on behalf of the accused and offered to show the innocence of the accused."
8. I have heard Mr. Gohar Razaq Awan, learned counsel for the appellant, Ch. Muhammad Arshad, learned counsel for the State and have also perused record minutely with their assistance.
9. In the present case the appellant had specifically raised two pleas in his defence, firstly his false involvement by his cousin Arif with whom he had business dispute and secondly of alibi. It will be advantageous to refer to the above named deposition of P.W.8 Muhammad Sarfraz, the Investigating Officer where he found both the pleas raised by the appellant as true. As regards his dispute with his cousin, the appellant in his statement under section 342, Cr.P.C. Had said that he had business dispute relating to poultry farm with his cousin Arif and that the complainant is the father of alleged victim Mst. Farhana and is in employment of his cousin. Further a civil suit about the business dispute between him and his cousin was pending in the Court of Mr. Amanullah, Civil Judge, Jhang, the next date of which was 7-3-2005. D.W.1 Adil Farooq corroborated his statement regarding the business dispute that appellant had with his cousin in his deposition.
10. As regard the plea of alibi, the alleged abduction and rape is stated to have been committed on 17-6-2002 as per the version of the complainant. Against this the defence was supported firstly by P.W.8 Muhammad Sarfraz, the Investigating Officer who in his cross-examination had stated that "the accused had also offered to prove his presence at Faisalabad during the said days. It is correct that the said Adil Farooq had stated before me in my interrogation and investigation that the accused had been with him from 16-6-2002 to 18-6-2002". He was corroborated in his finding by the deposition of D.W.1 and D.W.2 and Sajjad and Haji, the two eye-witnesses, who have not been cross-examined by the prosecution. In the case of Aminullah. v. The State reported as PLD 1982 SC 429 it was held that:-- "Accused in order to succeed on the plea of alibi to be required only to produce evidence sufficient to raise in mind of Court reasonable possibility of his being present at place of his assertion rather than at place of crime at time of occurrence onts of proving affirmatively alibi not to lie upon accused to extent and in sense onus lies on prosecution to prove case beyond reasonable doubt.
Held further, conclusion in such case as to guilt or innocence of accused to rest on basis of entire evidence considered and weighed as whole for and against prosecution and in case of reasonable doubt having arisen regarding complicity of accused, benefit of doubt to be given to him."
11. With regard to the plea of enmity and grudge his cousin Arif had toward him there is sufficient evidence to believe it. Neither D.W.1 nor D.W.2 were cross-examined on this point and P.W.8 the Investigating Officer had also referred to money dispute between the appellant and his cousin Arif.
12. Here reference may also be made to some aspects of the prosecution. As per statement recorded in F.I.R. By the complainant that two eye-witnesses to Zina were Sajjad and Haji but no one of them was produced by the prosecution. It was also stated by him that Mst. Farhana was married to one Imran. P.W.6, the victim in his examination-in-chief had stated that she was going to her house in Sultan Colony when she was abducted but in cross-examination she stated that she was going to her cousin's house. It was further stated by her that Mohalla people went to the police station, however, none of them was produced. P.W.2 Dr. Kaneez Zohra found that her hymen had got old tear, vagina orifice admitted two fingers easily and there were no mark of violence on any part of her body. In her opinion she was used to sexual intercourse. However, according to Chemical Examiner's report swa bs were stained with semen.
13. It is a settled position that defence plea is to be considered in juxtaposition with prosecution case which has to be proved beyond any shadow of doubt, however, in case defence is successful to create doubts in the credibility of prosecution case, an accused person must be acquitted. I am fortified by the decision in the case of Ashiq Hussain v. The State reported in 1993 SCM R 417 which has taken similar view. The learned Additional Judge also completely overlooked this position and did not care to apply his mind to the facts of the case. His assessment of evidence on record is perverse, fanciful and whimsical. There is also gross misreading of evidence.
14. Accordingly, the appeal is accepted and the impugned judgment, dated 4-5-2005, passed by the learned Additional Sessions Judge, Jhang is set aside with direction to jail authorities to release the appellant forthwith if not required in any other criminal case.