' SALAHUDDIN MIRZA, J.--- We had disposed of the following four appeals on 30-10-2007 by a short order after hearing Mr. Zulfiqar Ali Solangi, Advocate for appellant Sanaullah, Mr. Abdul Rauf Kasuri and Kashif Hanif, Advocates for appellant Mst. Ruqayya, Mr. Feroz Hussain Sheikh, Advocate for appellant Samina Bibi and Mr. Arshad H. Lodhi, A.A.-G. For the State:-- ' Criminal Appeal No,68/K of 2006 filed by Sanaullah Criminal Appeal No,80/K of 2006 filed by Muhammad Nawaz, Criminal Appeal No,84/K of 2006 filed by Mst. Ruqayya and Criminal Appeal No,88/K of 2006 filed by Mst. Samina.
2. The reasons for accepting of the appeals are as under:- ' All the above noted four appellants feel aggrieved from the judgment, dated 31-10-2006 passed by learned II Additional Sessions Judge, Karachi South-West, whereby they, along with Wakeel Ahmad who has not appealed, have been convicted and sentenced as follows:-- {{TABLE}} Mst. Ruqayya and her Convicted under section 265-H(2), husband Wakeel Cr.P.C. Read with section 14 of the Ahmad Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to life imprisonment with 30 (thirty) stripes and to pay fine of Rs,25,00Q or to undergo S.I. For one year in de fault of payment of fine.
Muhammad Nawaz Convicted under section 265-H(2), Sanaullah and Mst. Cr.P.C. Read with section 18 of the Samina Ordinance and sentenced to undergo R.I. For ten years with ten stripes and to pay fine of Rs,10,000 or to undergo S.I. For six months in default of payment of fine. {{TABLE}}
3. An F.I.R. No,188 of 2002 was lodged by S.-I. Muhammad Anwar at Police Station Clifton on 9-7- 2002 at 1730 hours in which he stated that while patrolling his area of jurisdiction he reached Gali No,20 (in Shah Rasool Colony, Clifton) at 1645 hours where Agha Hussain (P.W.4) and Hukumuddin (P.W.2) informed him that a prostitution den was being run in House No,716 and some men and women were present in the house even at that time and at this he went to the said house along with the two informants and, finding the door of the house open, he entered the same and found therein the following men and women: Muhammad Nawaz, Wakil Ahmad, Sanaullah, Mst. Khalida, Mst. Samina and Mst. Ruqayya alias Chachi (wife of Wakil Ahmad). On inquiry, Mst. Khalida and Mst.
Samina informed him that Wakil Ahmad and Mst. Ruqayya (who resided in this house) used to bring them from Qayyumabad to this house for purpose of prostitution. He then arrested all six of them --- Mst. Ruqayya and Wakil Ahmad under section 13 and the rest under sections 14 and 18 of the Zina Ordinance and entrusted the investigation of the case to S.-I, Mahboob Elahi. All the six of them were charged by learned trial Court on 1-2-2003 under sections 13, 14 and 18 of the Zina Ordinance for "gathering and preparing for committing the offence of Zina". However, accused Khalida is missing from the list of accused persons in the impugned judgment and there is nothing in the evidence of the complainant (P.W.1 S.-I. -Muhammad Anwar) or in the evidence of the Investigating Officer S.-I. Mahboob Elahi (P.W.5) as to what happened to her and why her name is not listed in the impugned judgment along with the names of other five accused persons but learned trial Judge states at page 2 of the judgment that she absconded after release on bail and had been declared proclaimed offender (paragraphs in the judgment are not numbered).
4. The prosecution has examined the following five witnesses in support of its case:-- P.W.1 S.-I. Muhammad Anwar who says that during July, 2002, he was posted in Police Station Clifton and was patrolling in the area along with his staff in a mobile van on 7-7-2002 and while passing through Gali No,20 in Shah Rasool Colony, Clifton, he received information at 1645 hours from P. Ws. Agha Shah Hussain and Councillor Hukmuddin that a brothel was being run in House No,716 of that Gali whereupon, accompanied by the two witnesses, he went to the house which was pointed out by the said witnesses and, finding the door of the house open, he entered it and found there three male and three female persons in "objectionable condition" who gave their names as Wakeel, Sanaullah, Ahmad Nawaz, Ruqayya alias Chachi. Samina and Khalida and the later two informed him tha' R uaqayya and Wakeel had brought them from Qayyumabad, Akhtar Colony, for purposes of prostitution whereupon he arrested them and secured one wrist watch and Rs,10 from them and prepared memo. Of arrest and recovery which he produced as Exh.4/A on which the two informants signed as marginal witnesses and then brought the arrested persons to the police station and lodged the F.I.R. Exh.4/B and thereafter handed over the investigation to S.-I. Mahboob Ilahi. He identified the four accused in the Court (accused Khalida having jumped bail and absconded shortly after the framing of the charge).
P.W.2 Hukmuddin.--- He is a vegetable seller and said he was a Councillor of the area in those days, that on the day of incident, whose date or month he did not remember, he was passing through the street at about 1400/1430 hours when a person, selling Pakoraas on a handcart informed him that some incident had happened in a house nearby and he, being the Councillor, should look into the same whereupon he, along with another Councillor Agha Shah and some Mohalla people, went to the nearby house of Subhan and saw that Subhan was present there and there were also three women, two of whom without shirt who, on seeing Hukumuddin and party, they (the two women without shirts) "hid themselves by putting clothes upon them". The witness also saw two other persons in the house whom he identified in the Court as accused Sanaullah and Muhammad Nawaz. He also identified the two lady accused present in the Court as two of the three women he saw in the house, accused Samina being one of those two women who were without shirt. He also stated that the Mohalla people (who were with him) managed to see (which he himself did not see) two or three persons escaping from the house "by jumping over the roof of the house" and they (the Mohalla people) then started "beating the accused outside the house".
The witness, however, did not support the prosecution version given in the F.I.R. And deposed by P.W.1 S.-I. Anwar that he (the witness) had seen the police mobile in the street and had informed S.- I. Anwar that a prostitution den was being run in House No,716 and some men and women were present in the house. On the contrary, he stated that the police had not come there (at the said house) in his presence but came there afterwards and took the accused to the police station where the police called him (and other P.Ws.) and obtained his signature, as well as of P.W.4 Agha Hussain and the thumb-impression of P.W.3 Fazal Rahim on a paper which they had already prepared and he identified that paper as Exh.4/A, affirmed his signature thereon and added that its contents were not even read over to him and that the police did not record his statement either. In cross-examination he also said that the owner of the house Subhan was also arrested by the police and had been brought to the police station. (The prosecution did not declare him hostile).
P.W.3 Fazle Rahim.--- This witness was declared hostile after he deposed that at 4 or 5 in the afternoon on the day when the incident is said to have occurred he was informed by his family members that some incident had taken place in the Mohalla whereupon he came out in the street and saw a police van taking some persons but he had not identified any of those persons and thereafter P.W.4 Agha Shah took him to the police station where police ascertained his name. He denied having gone inside the house of Subhan and also declined to identify his LTI on Exh.4/A. He further stated that he could not identify the accused present in the Court as they had not been arrested in his presence. Cross-examined by State counsel after having been declared hostile, he denied that he was not supporting the prosecution case because he had been won-over by the accused.
P.W.4 Syed Agha Hussain.--- He says that he was a Councillor during the. Days of this incident and on 7-7-2002 four or five Mohalla people came to him in the afternoon at about 4 p.m. And informed him that a brothel was being run in Gali No,20 in their area but did not give the number of the house as it was Katchi Abadi and house numbers had not by then allotted. At the same time some other Mohalla people came to his house along with another Councillor' Hukumuddin and they informed him that some persons were present in a certain house pointed out by them. At this he informed Police Station Clifton and a police party came to his house and he and Hukumuddin went with the police to the said house at about 5 p.m. And, upon entering the same, found three men and three women in separate rooms who were without clothes and were committing Zina who were all arrested by the police. He further said that he recognized one of the women who was Ruqayya who was running the brothel and that the other two women gave their names as Samina and Khalida and the male persons gave their names but he could only recall the names of the two as Wakeel and Sanaullah but could not recall the name of the third person. He further stated that accused Samina was committing Zina with accused Muhammad Nawaz in one room while accused Khalida (who absconded after the framing of the charge and before recording of evidence) was committing Zina with accused Sanaullah in another room and the witness further stated that he did not see accused Ruqayya in any room but she was present in the house nevertheless. The witness further said that the police then took the accused persons to the police station and he also accompanied the police and the memo. Of arrest was prepared at the police station on which he and P.W. Hukumuddin signed as Musheers. In cross-examination he stated that Subhan, the owner of the house, was also present in the house and he was also arrested.
P.W.5 S.-I. Mahboob Elahi.--- He is the Investigating Officer. He received the copy of F.I.R. Along with the memo. Of arrest at 1730 hours on 7-7-2002. He says he referred all the accused to hospital for medico-legal examination vide letter Exh.8/A and after receiving the "slides" from the Medical Officer sent them to the Chemical Examiner for examination and report (however, neither the Medical Officer has been examined nor the report of the Medical Officer or of the Chemical Examiner has been tendered in evidence). In cross-examination he denied that custody of Subhan, the owner of the house, had been given to him by P.W.1 S.-I. Muhammad Anwar along with the accused persons.
5. All the accused denied the prosecution story in their 342, Cr.P.C. Statements and stated that they could not say why they had been falsely implicated in the case. However, accused Samina also stated that she had come to the said house to meet accused Chahci Ruqayya.
6. Appellant Muhammad Nawaz was not represented by any counsel on the date of hearing but the learned counsel for the rest of the appellants were heard along with the State counsel and record has been perused.
7. We are of the considered view that not only the prosecution has failed to prove its case beyond any shadow of doubt but even a cursory glance on the evidence shows that the appellants had been maliciously and falsely implicated in this fabricated case which has virtually no legs to stand upon.
8. The complainant P. W.1 S.-I. Muhammad Anwar says that the door of the house was open when the police party reached the house. It is just common sense to realize that the owner of the house where a prostitution den is running would not keep its door open even at the time when prostitution activity was going on there. Secondly the F.I.R. Does not disclose that any illegal activity was going on in the house and it simply states that three men and three women were inside the house and two of the women informed him that they had been brought there by Wakeel and Ruqayya for prostitution purposes. That is why no charge of committing Zina was framed against the accused and they were charged for making preparations for committing Zina. The F.I.R. Does not disclose any circumstance which would warrant the conclusion that the accused persons were preparing to commit Zina and charging them under section 18 of the Zina Ordinance is not justified under any circumstances. Charging them under sections 13 and 14 of the said Ordinance is even more outrageous. The F.I.R. Or the 161, Cr.P.C. Statements of the witnesses do not even remotely suggest that anyone of the accused had sold, or was trying to sell, anyone for purposes of prostitution or any of them had bought or hired anyone or otherwise obtained possession of anyone with the intention that such person would be employed or used for the purpose of prostitution or illegal sexual intercourse. Besides, the F.I.R. Does not disclose who was the victim of the offence with which the six accused had been charged. If an offence under section 13 or section 14 is committed, it must be committed against somebody but the F.I.R. Does not even disclose such "somebody". If Mr. Salim Jan Khan, learned II-Additional Sessions Judge, Karachi South-West, had applied his mind to the facts of the case he would surely have discharged the accused instead of framing charge against them under sections 13, 14 and 18 of the. Zina Ordinance.
9. And once the accused persons were charged and put on trial, the evidence adduced by the prosecution is extremely unreliable to sustain any of the charges with which the accused persons had been charged. Complainant P. W.1 S.-I. Muhammad Anwar says he found the accused persons in "objectionable condition". Now, "objectionable" condition is a relative term. So, what was the objectionable condition? It has not been explained. To a Mullah and a fundamentalist if a man and woman, not related to each other, are sitting in a room and talking, he would say they were sitting in an objectionable condition whereas a liberal person would not even dream to say so. P.W.12 Hukumuddin, in the spirit of "muddai sust gawah chust", says that he entered the house with the police party and saw that two of the women were sitting without shirts --- something not stated by the complainant either in the F.I.R. Or in his deposition as P. W.1. And even P.W.2 Hukumuddin does not say that those two women were sitting naked; if they were not wearing shirt, they might have been wearing blouse or T-shirt; he did not say that they were not wearing anything on the upper portion of the body and as for the lower part of the body even he does not say that it was naked.
This witness stated that the Mohalla people who had gone with him and entered with him the house of Subhan had seen two or three persons escaping from the house by "jumping over the roof of the house" but neither the complainant had stated so nor any of these Mohalla people had been examined in Court. Even so, this witness (P.W.2 Hukumuddin) threw the prosecution case in the dustbin when he said that "police did not come there (in House No,716 of Subhan) in his presence.
He also did not subscribe to the prosecution case that he had found a police mobile in the Gali and informed S.-I. Anwar that prostitution had been going on in that house. Also, contrary to the prosecution case, he said he was later called at the police station where the police took his signature, and that of P.W. Agha Hussain and L,T.I of P.W. Fazl-e-Raheem on Musheernama Exh.4/1 and contents were not even read over to him (or to other P.Ws.). The next witness P.W.3 Fazal-e- Raheem did not support the prosecution at all and was declared hostile after deposing in the Court that after being informed by his family that some incident had taken place in the Mohalla he went out in the street and saw some persons being taken away by a police van but he did not see those persons from close range and did not recognize them and that later on P.W. Agha Shah took him to the police station where he was asked to give his name and he had not at all gone inside the house of Subhan. The next prosecution witness P.W.4 Syed Agha Hussain, in the spirit of being more loyal than the king, made allegations which were not contained either in the F.I.R. Or deposed in the Court by the complainant. He said that on entering the house in question he found all the six men and women "without wearing any clothes" and they were in three separate rooms, one man and one woman in each room, and were committing Zina. He thus, goes far beyond the allegations made in the F.I.R. And in the deposition of the complainant. While the complainant P. W.1 stated that he prepared the memo. Of arrest and of recovery of various articles at the spot (i,e,, the house of Subhan) this witness P.W.4 says that both these memos. Were prepared at the police station.
10. And what was recovered from the house of Subhan which was raided --- the F.I.R. Is silent about the recovery of anything from the house but the complainant P.W.1 in his deposition says that a wrist watch and Rs,10 in cash were recovered vide memo. Of recovery and arrest Exh.4/A which was prepared at the spot. Who would believe that three persons go to a prostitution den for satisfying their sexual urge and take with them at an average Rs,3.3 per person and the three ladies had not even one rupee on their person or in their purses?
11. A perusal of the impugned judgment shows that learned Additional Sessions Judge did not apply his mind to the evidence before him and allowed himself to be governed by whims and surmises and ended up by committing gross travesty and miscarriage of justice by swallowing the crude bait thrown before him by the prosecution and convicting the accused persons on such unreliable evidence which goes beyond the ambit of the case set up in the F.I.R. And the evidence of the complainant. The impugned judgment is, to say the least, perverse and deserves to be set aside. It is accordingly set aside and the appellants are acquitted. Appellants Samina and Ruqayya are under custody; they may be released forthwith if not required in any other case. Appellants Sanaullah and Muhammad Nawaz are on bail and their bail bonds stand discharged.
12. Co-accused Wakil Ahmad has not appealed against the impugned judgment and against the conviction and sentence imposed upon him under it. However, his case is exactly the same as of the four accused/appellants before us in these four appeals and in view of the judgments reported as Muhammad Aslam and 5 others v. The State 1972 SCM R 194 and Muhabbat Ali and another v.
The State 1985 SCM R 662, Wakil Ahmad is also entitled to benefit from the findings in this judgment and we would also acquit him and he may also be released forthwith if not required in any other case.