Criminal Appeal No, 127/L/2005 and Criminal Appeal No, 138/L/2005, two separate appeals, are being decided through this judgment as both the appeals arise out of the common judgment dated 09.04.2005 passed by Additional Sessions Judge, Burewala, District Vehari, whereby the appellants namely Mst. Irshad Akhtar and Muhammad Tanvir have been convicted under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to five years rigorous imprisonment each with fine of Rs, 5000/- each in default whereof to suffer further term of three months simple imprisonment each with benefit of Section 382-B of the Code of Criminal Procedure.
2. Brief facts of the case as stated in F.1.R No, 66/2001 dated 19.05.2001 are that Muhammad Boota PW-2, complainant of the case, made a statement before Pervez Mahmood, Assistant Sub Inspector, PW-6 that he was at his tube well when at 3:30 a.m, he went home from his tubewell installed in the fields to collect oil when he saw a stranger getting down from a rickshaw in front of his house. He became suspicious and went to his relatives Abdul Ghaffar and Muhammad Iftikhar who happened to be his neighbours. He took them along and went to his house. The main door of the house was open. As he went inside he saw his wife indulging in "Haramkari" with the stranger who, on enquiry, revealed his identity as Muhammad Tanvir son of Muhammad Nazir, caste Bhatti, resident of P Block Burewala. The complainant stated further that he along with his companions was taking both the accused for "Karwai" when the officer concerned met him on his way before whom both the accused were produced whereafter he got his statement recorded. He also stated that his wife had developed illicit relation with Tanveer accused since some time back.
3. The statement of the complainant Ex.PA was recorded and transmitted to the Police Station for formal registration of the crime report. Thereafter Police investigation ensued. The accused were arrested and site plan Ex.PD was prepared by Parvez Muhammad Assistant Sub Inspector, PW-6.
The investigation was then conducted by Deputy Superintendent of Police who, after recording evidence of witnesses, found that the offence complained of, was not committed. Consequently a report seeking cancellation of the crime report was prepared on 14.06.2001 by the Station House Officer of the Police Station. However, report under Section 173 of the Code of Criminal Procedure was submitted in the trial Court on 09.08.2001 requiring the accused to face trial. Formal charge was framed by the trial Court against Muhammad Tanvir and Mst. Irshad Bibi on 15.04.2002 under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. The accused pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case produced six witnesses. The gist of prosecution evidence is as under:-
(i) PW-1 Abdul Ghaffar uncle and a neighbour of complainant Muhammad Boota, deposed that on 19.05.2001 at about 3/4.00 a.m. Muhammad Boota complainant called him from his house and both of them went to the complainant's house and saw that Tanveer and Irshad Akhtar were committing Zina with each other.
(ii) Muhammad Boota complainant appeared as PW-2 and reiterated the story narrated in the crime report Ex. P. \ 1.
(iii)PW-3 Doctor Sajjad Ahmad Dhillon had medically examined Tanvir accused on 20.05.2001 and found him sexually potent.
(iii) PW-4 Doctor Sameena Shaheen had medically examined Mst. Irshad and on receipt of report of the Chemical Examiner, opined that Mst. Irshad was subjected to intercourse.
(iv) PW.5 Zafar Iqbal, Head Constable, deposed that on 19.05.2001 he recorded F.I.R Ex.PA/1 on the basis of complaint Ex.PA. He further deposed that on 20.05.2001 the I.O. handed over to him one sealed parcel for safe custody which he handed over to Manzoor Ahmad Constable on 17.06.2001 for onward transmission to the office of the Chemical Examiner, Multan.
(v) PW-6 Pervez Mahmood ASI had investigated the case. He deposed that on 19.05.2001 he recorded the statement Ex.PA of Muhammad Boots. complainant and he sent the same to police station for registration of the case. He inspected the place of occurrence, prepared site-plan Ex.PD and arrested the accused. He obtained permission form the Court of learned Maga Magistrate on 20.05.2001 for medical examination of the accused. He sent the accused to judicial lock-up.
Thereafter the investigation was transferred. On 30.09.2001 he recorded the statements of Moharrar, and Manzoor Ahmad Constable relating to the parcel.
5. The prosecution closed its case on 26.02.2004 after tendering in evidence the report of Chemical Examiner Ex.PD. Statements of accused Tanvir and Mst. Irshad Akhtar were recorded under Section 342 of the Code of Criminal Procedure on 12.03.2004. Muhammad Tanvir accused stated as under: "One Manzoor Ahmed took me from Dogar market Lahore Road Burewala to Chak No, 259/EB and then implicated me in this false case just to grab the land of complainant. Moreover, the PWs are inter-se related and no independent witness has supported the prosecution case. PWs deposed against me on the behest of Manzoor Ahmed and due to their personal interest of grabbing land."
Mst. Irshad Akhtar accused stated in her statement under Section 342 of the Code of Criminal Procedure as under:-- "It is incorrect. Factually the complainant of the case namely Muhammad Boota who was my husband is simple and illiterate person and his relatives Manzoor etc. were in possession of his land and wanted to snatch the same from him. I had been insisting upon my ex-husband, Muhammad Boota, the complainant of this case to take his land back from Manzoor etc. Taking undue advantage of the simplicity of Muhammad Boots., Manzoor etc. got the false case registered from him. On 19.5.2001 Manzoor, the relative of Muhammad Boota knocked the door of the house, saying that a guest of mine has come and I come forward towards the door and notice that person was not guest of mine. Meanwhile, Manzoor, Ghaffar, Sardar and four unknown persons entered into the house and they roped me and the person who was stated to be the guest of mine. Thereafter, the instant case was got registered in connivance with the Police especially with Pervaiz Mehmood, Assistant Sub Inspector, Police Station Fateh Shah, which is false. I do not know the person namely Tanveer. I continued to be duly wedded wife of my husband Muhammad Boota till the registration of the case. The case was found false in the investigation conducted by Deputy Superintendent of Police Burewala."
6. Thereafter the accused produced two DWs in their defence:--
(i) DW. 1 Muhammad Akram, Sub Inspector deposed that the investigation of the case was entrusted to S.D.P.O Burewala on the application of Muhammad Boota father of Mst. Irshad Akhtar accused. On 06.06.2001, Jahan Khan Deputy Superintendent of Police/SDPO Burewala investigated the case. Both the parties participated in the said investigation. 27 persons appeared on behalf of Irshad Akhtar and Tanvir accused. The SDPO found the case false and baseless as a result of his investigation and directed its cancellation. The witness identified the writing and signatures of Jahan Khan Deputy Superintendent of Police.
(ii) DW.2 Muhammad Murtaza deposed that on 18.05.2001 he was standing near Dogar Market where accused Tanvir was present with ,another person on motorcycle. He inquired from Tanvir accused as to where he was going who told him that he was going to the village of Manzoor and they went away. The witness further deposed that he appeared before Deputy Superintendent of Police and submitted his affidavit.
7. The learned trial Court after assessing the evidence convicted and sentenced the accused as mentioned above for the following reasons recorded in paragraph 20 of the impugned judgment. "I am of the confirmed view that all the PWs were present at the scene of occurrence and their evidence is not only convincing capable of inspiring confidence and worthy of credence rather it also goes unchallenged by the defence. All the PWs narrated the start and end of the occurrence and gave full details of the manner in which they saw the commission of the offence and in the circumstances, their testimonies appear quite true and free from bias. They before the occurrence were not at all inimical towards the accused persons which enmity might have prompted them to go against the former to the extent of involving them in a heinous offence. In the absence of any background of enmity, there appears no justification to throw the confidence inspiring and straight forward evidence of the PWs."
8. I have gone through the file and also perused the evidence apart from assessing the statement of accused. I have noticed the following points in the record of this case:--
(i) The information imparted to the Police officer by the complainant, in Ex.PA, within an hour and a half of the said incident was that (a) a rickshaw, after dropping some one in front of complainant's house was returning and b) he therefore become suspicious, (c) and thereafter he along with other witnesses entered his house (d) and saw his wife busy in "Haramkari" with "another person" who on enquiry identified himself as Muhammad Tanveer son of Muhammad Nazir, caste Bhatti, resident of P Block Burewala, and (e) then the two accused were being taken alongwith other witnesses for "Karwai" and on their way to Police Station met the Police officer at Ada Satwan Meel where the two culprits were produced. It was on this statement, reduced in writing at 4:30 a.m that the F.LR Ex.PA/1 bearing number 66/2001 was registered at 5.00 a.m.
(ii)That the complainant while deposing at the trial as PW-2 in cross-examination stated as follows:-- "I did not inquire from Tanvir accused where he was going when he alighted from the rickshaw.
Tanvir accused used to visit us daily prior to this occurrence. I do not remember if I had made complaint against Tanvir for his constant visits to my house. I narrated this fact to Investigating Officer who recorded it in his case diary. This case was investigated twicely. It is correct that our case was cancelled. Manzoor is not related to me. My relations with my wife were not cordial."
(c) This witness, in response to questions put by the defence also stated as follows:-- "I did not complain the Police about the visit of said accused prior to this occurrence. I did not catch Tanvir accused prior to this occurrence. I did not complain to the family of accused Tanvir about his visit of my house. I also did not inform my relatives namely Ghaffar, Sardar and Iftikhar about the visit of said accused. Tanvir accused is resident of Burewala city. My house is at a distance of four miles from Burewala City. My uncle Abdul Ghaffar went to inform the Police at 6.00 p.m on the, day of occurrence. On the day of occurrence, I and my wife Mst. Irshad remained in the house.
Except us no other was present there. There was no body at the place of occurrence before the arrival of Police."
(d)PW-2 also stated: "I was not present in my house on the day of occurrence. I do not see Tanvir accused on Rickshaw coming to my house and nor I saw the accused in my house on that day. After 8 days of occurrence, I divorced Mst. Irshad Akhtar accused. I do not remember if I had recorded in the divorce that I have announced divorce upon my wife on account of her illicit relations with Tanvir accused."
(e) PW-2 the complainant, admitted in his cross-examination that "all the private witnesses are closely related to me. I do not remember whether any Lambardar, Chowkidar or Councillor is cited as PW or not". The complainant also admitted that there was no Rickshaw at the time when he reached home. However, he admitted having stated earlier that Rickshaw was present.
(iii) Statement of PW-5, Zafar Iqbal, Head Constable makes an interested reading. He stated:-- "On 20.05.2001, Investigating Officer of the case handed over to me one sealed parcel for safe custody and onward transmission to the office of Chemical Examiner, Multan, which I handed over to Manzoor Ahmad 505/C on 17.06.2001." It means that the parcel was retained by him for 27 days without explanation and justification. The witness during his cross-examination also stated:-- "On 30.09.2001 my statement was recorded by Pervez Mahmood, Assistant Sub Inspector. It is correct that the parcel was received by me on 22.05.2001. It was not handed over to me prior to 22.05.2001. Due to accidences of duty, I could not hand over the parcel to Manzoor Ahmad prior to 17.06.2001. I had not written any Rappat in this regard. My statement was not recorded on the day, when the parcel was handed over to me and even was not recorded when I handed over it to Manzoor Ahmad. It is correct that this case was cancelled by Jahan Khan, Deputy Superintendent of Police." If this is the standard of investigation then the prosecution should not expect much in its support.
(iv) Pervez Mahmood, Assistant Sub Inspector, PW-6, the initial Investigating Officer has deposed about the state of affairs at the place of occurrence immediately after receiving the information.
He stated as under:-- "Accused were arrested on 19.05.2001 from the place of occurrence at Chak No, 325/E.B. I did not see that they were roped there. I arrested the accused at Point No, 1 mentioned in the site-plan Ex.PD. At that time, PW Iftikhar and Abdul Ghaffar were present. I do not know their relationship with the complainant. The accused were arrested at 5.00/5:30 a.m., is correct that Manzoor, the brother of Mst. Irshad Akhtar had filed a writ before the Hon'ble High Court that myself and PWs had illegally confined them and roped with pillar. It is correct that a case was got registered from Irshad Akhtar against the PWs of the instant case. It is correct that the Hon'ble High Court had ordered departmental proceedings against me. Volunteered that inquiry was decided in my favour. I had appeared in that writ. It is correct that I submitted my reply to the notice in writing. It is correct that I had stated my version therein. It is correct that a sentence, "also beg pardon in the present case" was mentioned therein." (Emphasis added)
9. Abdul Ghaffar PW-1, the alleged eye witness of the occurrence and uncle of the complainant wanted the trial Court to believe that the outer door of the house of Boota was open at the time the alleged Zina with the wife of Boota was in progress. He also stated that there was no Rickshaw at the place of occurrence. However, the prosecution story is that accused, a Rickshaw driver in Burewala, had come on a Rickshaw to have sex with Mst. Irshad Akhtar. This eye witness further stated that he along with Boota complainant and Iftikhar went to inform the Police. The witness also stated that the culprits i.e both the accused after being caught red handed were detained by them at the place of occurrence. The crime report i.e the first information report allegedly registered on the statement of the complainant at 4:30 a.m reveals that both the culprits were taken from the place of occurrence for the "Karwai" and handed over to the Police at the Satwan Meel Ada at few miles away from the place of occurrence. There is a lot of contradictions as regards the place where accused were kept after their alleged detention by the complainant party and the place from where they were arrested. These doubts are not at all helpful for the prosecution for the simple reason that conviction cannot be based upon the testimony of witnesses who neither come out with a consistent version nor inspire confidence. The judicial mind must be satisfied that the witnesses have taken the Courts of law into confidence and not: endeavoured to suppress essential information.
10. The other important aspect to be considered is whether the appellant was previously known to the complainant? The earlier part of the Crime Report Ex.PA dictated on the statement of the complainant reveals that the person doing "Haramkari" was not known already and it was only on enquiry that he disclosed his identity as Tanveer (the appellant in Criminal Appeal No, 138-L/2005) but in the same breath the complainant also alleged that this Tanveer had since long developed illicit relationship with his wife the other appellant. In his cross-examination the complainant admitted that this Tanvir used to visit them daily. If this part of the story is accepted then the question is as to why the complainant suffered the regular visits of Tanveer in his house?
11. The investigation conducted by Pervez Mahmood Assistant Sub Inspector whereby he found both the accused guilty is not free from suspicious conduct. He admitted that a constitutional petition was moved against him in the High Court and he begged pardon for the manner in which he had investigated the case against the appellants. Enquiries were also held against him about his conduct in this very case. It is also in the evidence of PW-5 Zafar Iqbal Head Constable that Ch.Jahan Khan Deputy Superintendent of Police investigated this case. It is correct that the case was cancelled by Jahan Khan Deputy Superintendent of Police'.
12. There is the evidence of complainant PW-2 and his uncle Abdul Ghafoor PW-1 that they saw the act of Zina being done by the accused and both of them were detained and locked in the room but this part of the story is not supported by the crime report. This witness also stated that there was no Rickshaw at the place of occurrence. If there was a Rickshaw at the place of occurrence then the story of prosecution is corroborated in the sense that Tanveer accused had come for the objectionable act but if there was no Rickshaw as both the eye witnesses A admit i.e the complainant and PW-1 then the version of the appellant, that he was brought to the place of occurrence by one Manzoor Ahmad and he was thereafter involved in this case gain strength. The purpose behind this scheme appears to be the removal of Mst. Irshad Akhtar, wife of the complainant from the way and in fact she was divorced after this occurrence.
13. I do not consider this case free from serious doubts. The prosecution evidence does not inspire confidence either. Whether accused was caught red handed or he was trapped is not very clear.
The story that he alongwith the other accused was taken to the Police for "Karwai" has undergone a calculated improvement and the manner, in which investigation was conducted was least satisfactory. Under the circumstances, on the principle of safe administration of justice, I accept both the appeals and by giving benefit of doubt set-aside the impugned judgment and acquit both the accused. They are on bail. Their sureties are relieved from the liability of bail bonds.