Ch. Ejaz Yousaf, J.--This Jail Petition for leave to appeal is directed against the judgment dated 16.06.2004 passed by learned Single Bench of the Federal Shariat Court, whereby Appeal Bearing No, 319/I of 2003 filed by the petitioner against his conviction and sentences under Sections 10(2) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") was dismissed.
2. Facts of the case, in brief, are that on 10.6.2001 report was lodged by one Muhammad Aslam son of Nazeer Ahmad with Police Station Sahuka, Burewala, District Vehari, wherein it was alleged that the complainant's sister namely Mst. Zainab Bibi was married with one Muhammad Yaqoob s/o Shahamand Khan but rukhsati had not taken place for want of dowry and she was residing with him. Petitioner who was on visiting terms with the complainant, developed illicit relations with his afore-named sister and taking advantage of the same abducted her with the help and connivance of Mst. Salma Bibi daughter of Khair Din and Mst. Zohran, daughter of Lakhu. Efforts through punchayat were made for the return of Mst. Zainab Bibi but it remained unfruitful.
Regarding delay in lodging the FIR, it was stated that since initially the complainant remained busy in search of Mst. Zainab Bibi and subsequently the accused party had promised to return her hand, but later on refused to do the needful, therefore, he could not lodge the report earlier. On the stated allegations, formal FIR Bearing No, 124/01 was registered at the said Police Station under Section 16/10 of the Ordinance and investigation was carried out in pursuance thereof. During investigation Zahoor Ahmad s/o Mian Ahmad and Mst. Zohran Bibi d/o Lakhu were found innocent while Khair Muhammad was arrested and sent to judicial lockup.
3. It would be pertinent to mention here that on receiving information that dead body of Mst.
Zainab Bibi, was lying in the Health Centre of Chak No, 25/KB, supplementary statement was also got recorded by the complainant on 10.3.2002. It was alleged therein that on receiving information about the death of his sister, the complainant had rushed to the said place and found that the petitioner was also present there who, on the query made disclosed that Mst. Zainab Bibi had given birth to a female child and as a result of complications she died due to neglect of care. The petitioner, though, initially fled away leaving the dead body of Mst. Zainab Bibi, in the Health Centre but afterwards was arrested and challaned to the Court for trial.
At the trial charge under Sections 16/10 of the Ordinance and 302/34 PPC was framed against the accused persons to which they pleaded not guilty and claimed trial. In order to prove the charge and substantiate the allegations leveled against the accused persons prosecution produced ten witnesses in all. PW-1 Dr. Nasreen Ateeq Bajwah, had conducted postmortem examination on the dead body of Mst. Zainab Bibi; PW-2 Shah Behram, Constable to whom last worn clothes of the deceased were handed over by the Doctor after postmortem examination; PW-3 Nazeer Ahmad, who had registered the FIR; PW-4 Muhammad Iqbal, ASI, the Investigating Officer; PW-5 Allah Ditta, ASI, who had recorded the supplementary statement of the complainant; PW-6 Muhammad Aslam, the complainant, PW-7 Mumtaz, who had on 8.4.2001 seen the petitioner taking away Mst.
Zainab Bibi in a car; PW-9 Dr. Masood Nisar Rana, who had medically examined the petitioner qua the potency test; and PW-10 Javed Ahmed, ASI, who had recorded the statement of the complainant. On completion of the prosecution evidence, statements of accused persons under Section 342 Cr.P.C. were recorded. In his above statement, the petitioner took the plea of valid marriage in his defence and stated that Mst. Zainab Bibi had accompanied him with her free will and consent and married him later on. He did not opt to appear as his own witness in terms of Section 340(2) Cr.P.C. but produced some documents i,e, Ex.DE Affidavit of Mst. Zainab Bibi, Ex.DF copy of plaint in the suit for jactitation of marriage filed by Mst. Zainab Bibi against Muhammad Yaqoob, Ex. DG attested copy of Writ Petition No, 19 of 2002 and Ex. DH Nikahnama regarding marriage between the petitioner and Mst. Zainab Bibi.
5. On conclusion of the trial, the learned Trial Judge convicted, the petitioner under Section 16 of the Ordinance and sentenced him to seven years R.I. along with a fine of Rs, Ten thousand or in default to undergo R.I. for one month. He was also convicted under Section 10(2) of the Ordinance and sentenced to undergo R.I. for ten years along with a fine of Rs, Ten thousand or in default to further undergo R.I. for one month. Both the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was also afforded to the petitioner. However, he was acquitted from the charge under Section 302/34 PPC as in the opinion of the trial Court, no evidence with regard to murder of Mst.
Zainab Bibi was produced by the prosecution. Rest of the accused persons were however, acquitted of the charge.
6. We have heard Hafiz Hifzur Rehman, learned counsel for the petitioner and Mr. Muhammad Saddiq Khan, learned Deputy Prosecutor General for the State.
Learned counsel for the petitioner has mainly contended that the plea of valid marriage taken in defence by the petitioner was not disbelieved by the learned trial Court and he was convicted merely on suspicion for committing zina prior to their marriage. He has urged that the conclusion drawn by both the Courts below that since the occurrence took place on 8.4.2001 and as per nikahnama Ex.DH, nikah was performed on 16.6.2001 and for the intervening period the petitioner and the deceased remained together without any legal bond, therefore presumably they were committing zina was patently unjustified He has maintained that an iota of evidence was not available to believe that the petitioner committed zina with the deceased prior to their marriage and it was also not established that both, remained together. He prayed that in the circumstances, the petitioner deserve to be acquitted of the charge.
7. Mr. Muhammad Saddiq Khan Baloch, learned Deputy Prosecutor General, on the other hand has stated that since Mst. Zainab Bibi was already in the wedlock with one Muhammad Yaqoob, therefore her marriage with the petitioner was void, and therefore, the petitioner was liable for the offence. He added that since the petitioner himself had admitted that in between the period from 8.4.2001 to 16.6.2001, the parties were not in the wedlock, therefore, the petitioner was rightly convicted of the offence. He, however, candidly conceded that no evidence was available to prove that during the aforementioned period they were living together or committing zina. Having been questioned as to whether any evidence or proof with regard to alleged nikah of deceased Mst.
Zainab Bibi with Muhammad Yaqoob, was produced at the trial, he further conceded that neither nikahnama with regard to Mst. Zainab's previous nikah was produced nor any witness was got examined to prove the same.
8. We have given our anxious consideration to the respective contentions of learned counsel for the parties and have also gone through the available record with their assistance, minutely.
9. It may be pointed out here that in the complaint though it was stated that Mst. Zainab Bibi was previously married with one Muhammad Yaqoob, yet neither any evidence was produced to prove the factum of her nikah with Muhammad Yaqoob, nor any document, especially the nikahnama with regard to said marriage was produced. On the contrary, certain documents including Ex. DH, the nikahnama were tendered in evidence by the petitioner. Though the witnesses of nikah were not produced at the trial, yet, since execution of these documents was not challenged by the opposite side, therefore authenticity thereof was not under jeopardy.
Admittedly no evidence on record is available to believe that the petitioner and deceased Mst, Zainab Bibi were committing zina prior to their marriage though she abandoned her house on 8.4.2001. Record is silent to the effect that both were living together even, therefore, we see force in the contention raised by learned counsel for the petitioner that in the absence of any evidence it could not have been presumed that the petitioner committed zina with the deceased. It is well settled that suspicion howsoever strong it may be, by itself cannot take place of proof._ This view receives support from the following reported judgments:-- (i)Bhugdomal Gangaram & others v. State of Gujrat (1984 FSC 640); (ii)State of U.P. v. Krishna Gopal & another (1988 MLD 1501); Vijant Kumar and others v. State through Chief Ehtesab Commissioner, Islamabad and others (PLD 2003 SC 56); It is also an established principle of the administration of criminal justice that conviction cannot be based on any other type of evidence howsoever, convincing it may be, unless direct or substantive evidence is available. D Even, guilt of an accused cannot be based merely on high probabilities that may be inferred from evidence in a particular case. In this view we are fortified by the following reported judgments:--
(i) Muhammad Luqman v. The State (PLD 1970 SC 10);
(ii) Muhammad Noor v. Member-I, Board of Revenue, Balochistan and others (1991 SCM R 463) ; Qalb-e-Abbas alias Nehola v. The State (1997 SCM R 290); In the instant case, evidence is grossly deficient to prove that petitioner and deceased Mst. Zainab Bibi, prior to their marriage were committing zina and that she was abducted by the petitioner, therefore in our view both the Courts below have gravely erred in recording conviction against the petitioner on both counts.
10. For the facts and reasons mentioned above, we are of the view that occurrence in the instant case has not taken place in the manner as suggested by the prosecution. In this case there is room for doubt benefit whereof must go to the petitioner. We, therefore, are inclined to convert this petition into appeal and allow the same. Order accordingly. Consequently the impugned judgments dated 1.11.2003 passed by the learned Addl. Sessions Judge, Burewala as well as of the Federal Shariat Court, dated 16.6.2004 are set-aside and the petitioner/appellant, namely, Yasin @ Ghulam Mustafa s/o Khair Muhammad is acquitted of the charge. He shall be released forthwith if not required in any other case.