' SALAHUDDIN MIRZA, J.---The facts of the case as per F.I. R. Recorded at Police Station Drahama (District Dera Ghazi Khan), on 16-7-2004 at 0415 hours by Muhammad Rafique are that Muhammad Rafiq was posted as "Gauge Reader" at Ghazi Ghat Bridge and during the night between 15th-16th July he was present on his duty along with Baildaar Saeed and one Muhammad Shafi when at 0230 hours he, along with the above mentioned two persons, proceeded to check the gauge at Spur R- II and saw five persons in the light of his torch in Mouza Haji Ghazi Sharqi, Qadir Bukhsh, Muhammad Yousuf and Abdul AZIZ, who were known to him since before, and two women who later gave their names as Mst. Naseem Mai and Mst. Rashida Mai, all in naked condition, Mst.
Naseem Mai busy in committing adultery with Qadir Bukhsh and Mst. Rashida Mai busy in committing adultery with Abdul Aziz. On seeing the complainant party, Muhammad Yousuf and Abdul Aziz ran away in naked condition while taking with them their Shalwars and Qameezes while Qadir Bukhsh and -the two women were overpowered by the complainant party and the tractor of the accused persons was also taken possession of. The complainant party took the three accused and their tractor to the police station and lodged the report. After investigation all the five accused persons were challaned under section 10 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and were charged and tried accordingly by learned Additional Sessions Judge, Dera Ghazi Khan and by the impugned judgment dated 16-3-2006 all the five of them were convicted under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to three years' rigorous imprisonment with fine of Rs,10,000 each or to three months' S.I.
In default of payment of fine even though Mst. Rashida Mai had died by then (but after 342, Cr.P.C.
Statement had been recorded) and she was no more present before him on the day the judgment was announced.
2. Learned counsel for the appellants and learned State Counsel have been heard and the evidence on record has been gone through with their assistance.
3. In all, the prosecution has examined ten witnesses in suppo,rt of its case. The first witness is Lady Doctor Shazia Mushtaq who simply stated that the two women were produced before her but they refused to be medically examined. Dr. Muhammad Khalid and Dr. Abdul Ghafoor Leghari (P.Ws.5 and 6) had conducted medical examination of appellants Abdul Aziz and Qadir Bukhsh respectively to determine their sexual potency and their findings are in the affirmative. It is however, clear as to why the third male appellant, Muhammad Yousuf, had not been examined for this purpose. P.Ws.7 to 10 are the police officials including the Investigation Officer of the case. The main witnesses on the deposition of whom the fate of the case hinges are the complainant P.W.2 Muhammad Rafiq and his two companions, P.W.3 Muhammad Saeed Baildar and P.W.4 Muhammad Shafi and shall shortly revert to them but before doing so I would examine the 342, Cr.P.C. Statements of the appellants.
4. According to appellant Abdul Aziz, he had political rivalry with the complainant due to which he had been falsely implicated in this case. The other two male co--accused said that they were the friends of appellant Abdul Aziz and had been falsely implicated due to their friendship with Abdul Aziz whereas the two lady accused said that, after visiting their relatives they were waiting for public transport at Ghazi Ghat Bridge when complainant happened to come that way and tried to molest them and when they reprimanded him he implicated them in this case.
5. I now revert to the evidence of P.W.2 complainant Muhammad Rafiq and his companions P.W.3 Muhammad Saeed Baildar and complainant's brother P.W.4 Muhammad Shafi and shall discuss their evidence in some detail in the following lines.
6. P.W.2 complainant Muhammad Rafiq says that on 0230 hours on 16-7-2004 he went to spur R-II along with Muhammad Saeed Baildar and one Muhammad Shafi and on the way he was told by a man of locality that two women and two men were committing adultery with each other whereupon they went one acre in the South and saw in the torch light that there were, in fact three men and two women, appellants Abdul Aziz and Mst. Rashida Mai on one cot and appellants Qadir Bakhsh and Mst. Naseem Mai on the other cot committing adultery while appellant Muhammad Yousuf, also in naked condition but with a Saafa around his private parts, was sitting on a wall about 15-20 feet away. The complainant party made Lalkara whereupon Muhammad Yousuf and Abdul Aziz managed to escape but the remaining three appellants were apprehended on the spot.
There was also a tractor nearby. They first went to police picket at Kot Chutta Road and then to Police Station Drahama where the report was lodged. In cross-examination (which comprised of ten typed pages) he stated that the land where adultery was being committed belonged to Hafiz Khuda Bakhsh. He conceded that he and appellant Abdul Aziz belonged to and resided in one Mouza and that his brother Iqbal had got registered theft case against one Wahid Bukhsh, cousin of Abdul Aziz appellant. He denied that there was no flood in Indus River during 2004, meaning thereby that there was in fact, flood in the river at that time and that during flood time he was expected to note down the water level and report the same every three hours. There are a lot of improvements in his deposition in Court. Firstly the F.I.R. Gives an impression that the offence was committed in the wildness of the river bank but in his deposition he says that the offence was being committed at a tube-well and there were to small rooms by the side of tube-well and there was a hand-pump as well. Secondly, the F.I.R. Gives an impression that the complainant party was going on foot but in evidence it transpires that they were going on motorcycle and he concealed till the middle of his cross-examination that Muhammad Shafi, one of the two persons who were accompanying him when they bumped into the appellants, was his brother. Thirdly, in F.I.R. It was categorically stated that Abdul Aziz and Muhammad Yousuf appellants had run away immediately after the complainant party barged upon them but in the deposition he says that he had apprehended appellant Abdul Aziz also but after some time he escaped by the ruse of disentangling his Shalwar from the thorny bushes. The complainant concedes that the irrigation staff from Baildar to S.D.O. Were present in the Camp Office near the place of Wardaat but he did not inform any of the staff members. He also concedes that the place of Wardaat was a picnic place where families came in the after noon. He also stated that if the appellants were acquitted he would pursue the matter in High Court. He also concedes that he had shown his willingness before the Court for the grant of bail to Qadir Bakhsh and had even filed his affidavit to vouchsafe his innocence.
7. P. W.3 Muhammad Saeed Baildar, one of the two companies of the complainant, gives a completely different version of the incident. He says that at the relevant time (0230 hours) he was at Spur R-II when he noticed a tractor in a suspicious condition whereupon he, complainant Muhammad Rafique and his brother Muhammad Shafi went to investigate on the motorcycle and saw in the torchlight that "appellant Ghulam Qadir was to complete dress whereas .Appellants Muhammad Yousuf and Abdul Aziz had Saafas around their middle part and two women were in naked condition and "he" had apprehended them all (he excludes the complainant and Muhammad Shafi from playing any role in the incident). Thus; the story of the appellants committing adultery just goes into the wind. He was not declared hostile and, strangely enough, he was also not cross-examined.
8. The other eye-witness, besides the complainant, is complainant's brother Muhammad Shafi (P.W.4) and he says that he had gone to give night meal to his brother (the complainant) and then he requested him to take him (the complainant) to Spur R-II and there they received information about the occurrence and when they reached there they saw in the torchlight that "Abdul Aziz and Muhammad Yousuf appellants had their middle parts wrapped in "Saafas" and Abdul Aziz and Qadir Bukhsh were committing adultery with the two female accused and that Abdul Aziz and Muhammad Yousuf fled away on seeing the complainant party whereas Qadir Bukhsh and the two female accused were apprehended by them whom r they produced before a police party which met them on the road". It is beyond comprehension how Abdul Aziz was given two distinctive roles.
First it was stated that he had middle part of his body wrapped in a Saafa; then it was stated that he was committing adultery with one of the lady accused. In cross-examination he stated that it was at a petrol pump at Deegar Wela that he came to know that the appellants had gone in a rickshaw for illicit intercourse but then added that he had himself seen all the appellants going in a rickshaw and at that time the tractor of appellant Abdul Aziz was parked at the petrol pump and that later a boy of 12-13 years of age informed him at the place of duty of his brother (the, complainant) that two couples were committing adultery: He then stated that when they reached the place of Wardaat, at that time Abdul Aziz appellant was taking bath.
9. It is very difficult to decide which of the three contradictory versions of the incident emerging from the evidence of the three alleged eye-witnesses is correct, if at all. No doubt the appellants have also not come clean in their 342, Cr.P.C. Statements but this is beside the point. The prosecution case must succeed or fail on the strength of its own merits of weaknesses. The F.I.R.
Paints a very innocent picture of the prosecution version; the complainant was on his way to. Take readings of the water gauges of Spur R-II along with "a man" and his Baildar when the unexpectedly bumped into the appellants indulging in adultery. Later it turns out that this was not so and P.W.4 Muhammad Shafi says that he was at the place of duty of his brother (the complainant), that he learnt from a 12-13 years old boy that two women and two men were committing adultery and he then further improves upon his statement and says that he himself saw the five appellants going into a rickshaw and he even names them. And while he says that the informer was 12-13 years old boy, complainant Muhammad Rafique says that the informer was a middle aged man. Besides, while it is quite possible that the 12-13 years old informer or Muhammad Shafi might have seen the five appellants going in a rickshaw, it boggles one's mind to figure out how they could have learnt that they were going for doing nothing else but committing adultery.
According to Syed Zahid Hussain Bukhari, S.H.O. (P.W.9), his investigation revealed that appellant Qadir Bukhsh was sleeping when the complainant party bumped into the appellants whereas, according to the complainant, Qadir Bukhsh was committing adultery with one of the lady appellants. It has also come in the deposition of P. W.10 Allah Diwaya, A.S.-I. That there was political enmity between appellant Abdul Aziz and the complainant and there was previous litigation between the them and it was also admitted by complainant Muhammad Rafique that his brother Iqbal had got registered a theft case against Wahid Bukhsh, cousin of Abdul Aziz appellant.
10. A perusal of the impugned judgment shows that it has no legs to stand upon and that it is the result of serious misinterpretation and misreading of the evidence. It seems that the complainant and his brother are sex centered and whenever they see a man and a woman together they jump to the conclusion that they (the man and woman) have adultery in their mind. In the first instance, it is not possible to believe that the incident occurred as alleged by the prosecution because it is so unnatural and there were too many contradictions in it to give it even a remote chance to be believed. In all probability, the appellants had gone to the tube-well near Ghazi Ghat Bridge for an overnight outing and having been falsely involved in this case due to the biased nature of complainant's mind and, may be also due to the political rivalry between him and appellant Abdul Aziz. Even the learned trial Judge did not believe the prosecution case and rejected the allegations of prosecution witnesses in this regard and concluded that a Zina or adultery was committed by the appellants; that is why he did not convict them under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, under which they were charged but, without having even in iota of evidence to sustain his conclusion that all the appellants performed overt acts towards commission of offence of Zina which, if not interrupted or frustrated or abandoned would have resulted in the commission of Zina, convicted them under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, merely because there were men and women together at the place of Wardaat (the tube-well of Hafiz Khuda Bukhsh). No one has either legal or moral right to enforce his version of morality and piety, and utter lies and calumnies in the process. The complainant and the other two alleged eye-witnesses appear to come within the mischief of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, as well as of sections 499, 500 and 509, P. P. C .
11.The complainant also appears to be guilty of derrelication of duty. He admits that it was flood season and he was duty bound to check the water level in the river and submit his report every three hours but the abandoned his work at act as khudaee Khidmatagar, to the determent of his official duites.
12.The upshot of the above discussion is that the impugned judgment is set aside and it is held that the appellants have not committed any offence under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, or under any other law and are acquitted. They are on bail and their bail bonds stand discharged.