This appeal under section 410, Cr. P. C. Is directed against the judgment dated 10th March, 1980 of the learned Additional Sessions Judge, Kandkot whereby he convicted the appellants under section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1970) and sentenced them to suffer R. I., for five years with whipping numbering 30 stripes each and a fine of Rs. 2,000 each and in default of payment of fine, they shall undergo further R. I. For one year each.
2. The facts of the prosecution case are that one Karim Bux son of Piranditta, Shaikh by case resident of Gulsher Mohalla, Kandhkot of District Jacobabad lodged his F.
1. R. On 10-12-1979 at 6-00 p. m., at Police Station, Kandhkot which reads as under :- "I used to clean "Nali" of Municipal at Kandhkot. My sister-in-law Mst. Hameedah was married with lbban alias Muhammado by case Sheikh about three (3) years ago. She resides with his mother in Mirza--pwr Mohalla, Kandhkot. She used to sweep Gut Sher Mohalla. In the evening, I alongwith Ramesh son of Gopi Sweeper resident of Mumtaz Mohalla. Kandhkot and Roopo Mal, son of Jumo sweeper resident of Gut Sher Mohallah were going by the street to purchase fuelwood. At about 5- 30 p.m., when we reached 'Otak' of Muhammad Bux Suhriani, I saw my sister-in-law Mst. Hameeda going in the Otak of Muhammad Bux Suhriani. We also slowly followed her and went inside. We found Mst. Hameedah and Gut Hassan son of Hazar Khan Sundrani resident of Dari in naked condition. Gut Hassan was committing sexual intercourse upon Mst. Hameedah in the 'Verandah'. I went secretly and took white trousers and "Chappal" of Hameedah. Gut Hassan stood up. Leaving Ramesh and Roopo as guard upon Gut Hassan and Mst. Hameedah, I went to Government High School and narrated the facts to 'Jamadar' Rasool Bux. I, Jamadar Rasool Bux and P. C. Qatandar Bux went there and brought Mst. Hameedah and Gut Hassan at P. S. 1., lodged complaint that Gul Hassan and Mst. Hameedah were enjoying sexual intercourse and also I produce white flat trousers and Chappal of Mst. Hameedah. I lodge complaint, justice be done."
3. A.I Anwar, P. W. 8, A. S. I. Of Police Station Kandhkot recorded the F. I. R. Exh.
16. The complainant produced the 'Shalwar' and 'Chappal' which he secured under Mashirnama, Exh. 12 in presence of Masbirs Abdul and Bashir Ahmad. He also arrested the accused Gut Hasssan and Mst. Hamida and secured their 'Shalwar' and loin-cloth and prepared such Mashir--namas, Exh5. 13 and 14, respectively. He then examined Roopo, P. W. 2, Ramesh, P. W. 1, Rasool Bux H. C., P. W. 3 and Kalandar Bux P. C., P. W.
4. He visited the scene of offence which was pointed out by the complainant. He prepared such Mashirnama Exh. 10 in presence of Mashirs Idan and Amir Bux. He then produced the accused before the Medical Officer, Kandhkot for their examination and certificate who referred them to the Civil Hospital, Jacobabad as there was no lady doctor at Kandhkot. He then took the accused to Jacobabad a5 .d produced them before the Doctor on duty in the Civil Hospital, Jacobabad where they were examined on the next morning. He examined Muhammad Bux on 12- 12-1979 and handed over the case papers to the S. H. O., Kandhkot who challaned the accused in the Court of F. C. M., Kandhkot. He produced 'Shalwar' and 'Chappal' as articles A and B and her 'Dopatta' as article C. He also produced 'Shalwar' of the accused Gut Hassan as article D.
4. The prosecution case is mainly based on the evidence of the com--plainant P. W. 7, eye- witnesses Ramesh, P. W. 1, Roopo, P. W. 2, corrobora--tive witnesses Rasool Bux, H. C. P. W. 3, Qalandar Bux, P. C., P. W.
4. Mashirs Amir Bux, P. W. 5, Abdul Jabbar, P. W. 6 and A.I Nawaz, A. S. L, Investigating Officer.
5. The accused however denied the allegations and claimed to be innocent. The accused Mst.
Hameeda further stated that the complainant Karim Bux was asking her to indulge in sexual intercourse with him for the past about two years but she was not submitting to him. She was sweeping the 'Otak' of Muhammad Bux Suhriani on the day of incident when Karim Bux went there and tried to commit rape on her. She raised cries which attracted Mohalla people and the complainant thereon ran away taking her 'Shalwar' and 'Chappal' with him and the P. Ws. Deposed against her due to enmity.
6. At the trial, the prosecution in order to prove guilt of the accused has examined the complainant Karim Bux who has stated that he, Roopo P. W. 2 and Ramesh, P. W. 1 were going to purchase fuel woods from Gulsher Mohalla when they saw Mst. Hamida entering into the 'Otak' of Muhammad Bux Suhriani. They followed her but she closed the door of 'Otak' behind her. The complainant scaled over the wall of the 'Otak' and opened the door and saw that the accused Gut Hassan was committing intercourse with Mst. Hamida. He then picked up the 'Shalwar' and 'Chappal' of Mst.
Hamida. P. Ws. Roopo and Ramesh also saw the accused committing sexual intercourse. He then posted Roopo and Ramesh as guard over the accused and himself went to the Police who were available in the Government High School, Kandhkot. He informed the Police about the incident and H. C. Rasool Bux and P. C. Kalandar Bux accompanied him to the 'Otak'. When they went there, they found Mst. Hamida clad is a loin-cloth of her ' Dopatta' and Gut Hassan there. The complainant, Ramesh, Roopo and the Police took them to police station where such F. I. R. Was lodged by the complainant who also produced 'Shalwar' and 'Chappal' before the Police. He has in cross- examination stated that accused had already reached police station when he went there. P. Ws.
Roopo and Ramesh were going to him to demand their pay as they used to clean the W. C. Of the complainant. He paid Rs. 20 to them. There are houses around the 'Otak'. The wall of the 'Otak' was about 6/7 feet high and there was another small wall adjacent to it and that he climbed over the wall with help of it. The accused saw him as soon as he dropped near the door but he immediately rushed to the 'Verandah' and picked up 'Shalwar' and 'Chappal'. None came to the 'Otak' from the Mohallah. He fastened the door from outside before he left for the Police station and none else was present near the 'Otak' when he returned with the Police. He has however stated that he did not know if the accused was in service of Municipality of Kandhkot but he had heard it. He denied if he.
Was working under him and that the accused Gut Hassan rebuked him several times. He has also denied if he bad an evil eye on the accused Mst. Hamida. He in reply to a question from the Court stated that be saw the act of penetration and the accused were 6/7 paces from him. P. Ws.
Ramesh and Roopo who figured as eye-witnesses in the F,
1. R. Have given complete go-bye to the prosecution case and have stated that they did not know complainant Karim Bux and so also the accused. They have therefore been declared hostile. Rasool Bux H. C., P. W. 3 and Qalandar Bux, P. C.
P. W., 4 have supported the complainant for going to them having 'Shalwar' and 'Chappal' in his hand and informing them that he had caught accused Gut Hassan and Mst. Hamida while committing sexual intercourse in 'Otak' of Muhammad Bux Suhriani' and have placed P. Ws.
Ramesh and Roopo as guard over them. They went there and found Mst. Hamida wear--ing loin- cloth of her 'Dopatta' and Gut Hassan standing there. They brought them to the police station. Amir Bux, P. W. 5, Mashir of scene of offence who is cousin of the complainant has not supported him and has therefore been declared hostile. Abdul Jabbar who acted as a Mashir has supported the production of 'Shalwar', 'Chappal' and arrest of the accused. A.I Anwar, Investigating Officer has also supported the case to the extent of his investigation. He has in reply to a question in the cross- examination has stated that there was no other wall adjacent to the compound wall of the 'Otak', where the incident had taken place. The complainant did not state before him if he climbed over the wall and dropped inside the 'Otak' and opened the door. There were no marks of semen on the 'Dopatta'.
7. Mr. Azizullah K. Shakh, the learned counsel for the appellants has contended that the only evidence against the accused is that of the complai--nant who has not been supported by any other independent witnesses. According to the F.
1. R., P. Ws. Roopo and Ramesh figured as eye- witnesses of the occurrence but they did not support the complainant on any material point. They have even refused to know him and have been declared hostile. The complainant who is admittedly a sweeper and used to clean 'Nali' of the Municipal Committee of Kandhkot has claimed P. Ws. Roopo and Ramesh to be in his pay for cleaning his W. C., and he paid Rs. 20 to them. There were houses around the 'Otak' but not a single neighbour out of them has been cited or examined as a witness in support of the prosecution case. The complainant denied to know if the accused Gut Hassan was in service in the Municipal Committee. But stated that he had heard it. It showed that he is not a reliable person and was not telling truth. His evidence therefore cannot be accepted particularly when he has not been supported by any other independent witness. The P. Ws. Rasool Bux'and Qalandar Bux do not provide direct corroboration for sexual intercourse-and their evidence is not sufficient to connect the accused with the offence. Moreover both of them are policemen. The complainant was in service of the army who had- gone to the 'Major' posted at Kandhkot even before lodging the F.
1. R., at the police station which showed that he was not an independent witness. The medical evidence does not support the prosecution case and there is no other convincing evidence against the accused. The prosecution has failed to connect the accused with the offence beyond any reasonable doubt and they are therefore entitled to the acquittal.
8. Mr. Ghulamally H. Agha, the learned counsel appearing for the State is also of the view that there being no corroboration from the neighbours, medical evidence and both the eye-witnesses turning hostile it would not be safe to rely on the only word of the complainant on the point of sexual inter- -course. He therefore does not support the conviction and sentences awarded to the accused.
9. I have considered the contentions of the learned counsel for the appellants as well as State. I have also read the evidence on record. It would be interesting to note that the complainant is aged about 25 years whereas the accused Gut Hassan is 2? Years old and Mst. Hamida of 20 years age.
The com--plainant claims the accused Mst. Hamida to be his sister-in-law. Mst. Hamida has stated before the trial Court that the complainant was asking her to indulge in sexual intercourse since past about two years but she did not submit to him. When P. Ws. Roopo and Ramesh have not at all supported the prosecution case. There remains only an uncorroborated word of the complainant Karim Bux on the point of sexual intercourse. Moreover the complainant himself did not say anything about the act of penetration till a question was put to him by the Court in this regard and he in reply to it stated that he saw the act of penetration taking place and the accused were 6/7 paces away from him. I do not think it was necessary for - the trial Court to have laboured to obtain such a reply particularly when the com--plainant was examined after Roopo and Ramesh were examined and they did not support the prosecution case. Actually its evidence of the complainant which is to be weighed with a view if it was sufficient to base conviction on his word.
His conduct in following the accused Mst. Hamida and taking away her 'Shalwar' and 'Chappal' to the Police is not without vengeance against her particularly when she was her sister-in-law. Mst.
Hamida has not examined any one in defence to the effect that the complai--nant used to ask her to indulge in sexual intercourse with him for the past two years and that the complainant tried to commit rape with her on the day of incident. When she raised cries which attracted Mohalla people and he ran away with his 'Shal,var' and 'Chappal'- It would therefore not be possible to accept such proposition without any evidence in favour of it. Be that as it may, the fact remains that the conduct of the complainant is not that of an independent person who had no bias against the accused. I therefore do not consider him to be an independent person so as to accept his word and maintain the convictions and sentences awarded to the accused without other material corroboration for sexual intercourse. The other two eye--witnesses have undoubtedly turned hostile and the medical evidence does no support the prosecution case. Moreover the incident is alleged to have taken place at about sunset time and under stair case. It is therefore very difficult to say that the complainant has seen the actual penetration. The conduce of the complainant as a whole has not impressed me at all and in absence of any other direct evidence on the point of sexual intercourse and penetration I do not consider it safe to accept his word and maintain the conviction and sentences. I am therefore of the view that there is no convincing evidence and the accused under the circumstances are entitled to benefit of doubt. They are accordingly acquitted and the convictions and sentences awarded to them are set aside. They are on bail and their bail bonds shall stand cancelled. The judgment acquitting the accused was announced by me earlier by a short order and these are the reasons fox it.