This common judgment will dispose of Crl. Appeal No, 156/L of 2007 filed by appellants Mst. Shazia and Mst. Naureen and Crl. Appeal No, 166/L of 2007 filed by appellants Falak Sher and Mukhtar Ahmad against the judgment dated 18.07.2007 delivered by learned Additional Sessions Judge, Gojra District Toba Tek Singh whereby all the four appellants were. convicted and sentence as under:-- Appellants Falak Sher and Mukhtar Ahmad
(i) Under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 to 03 years R.I with fine of Rs, 6000/- each, in default thereof to undergo 4 months S.I each.
(ii) Under Section 451, PPC to 2 years R.I with fine of Rs, 4000/-each, in default thereof, to further undergo 3 months S.I each.
Appellants Mst. Shazia and Mst. Naureen Under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 to 2 years R.I with fine of Rs, 4000/-each, in default thereof to further undergo 3 months S.I each.
All the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. to all the four appellants.
2. Brief facts arisen out of FIR No, 351/2006 Ex.PA/1 registered under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 with Police Station Saddar Gojra, District Toba Tek Singh, as narrated by complainant Mujahid Abbas, PW-1, are that Muhammad Rashid A.S.I, PW-10, was present at Pul Murad Shah alongwith some Police Constables when Mujahid Abbas, Fayyaz Hussain and Mukhtar Hussain appeared before the Investigating Officer and produced the accused persons before him. He recorded statement of the complainant Ex.PA and sent to Police Station for formal registration of the case. The complainant stated in the complaint that on 31.08.2006 at about 1.00 a.m, he, Fayyaz Hussain and Mukhtar Ahmad were coming from the Dera to the house. When they reached near the house of Sardar Muhammad, they saw that Falak Sher and Mukhtar accused by scaling over the wall of house of Sardar Muhammad, entered the house.
Electric bulb was on. Then they alertly saw that Falak Sher was lying with Mst. Shazia and Mukhtar Ahmad accused with Mst. Naureen. Then all the accused (both male and female) put of their Shalwars and started committing Zina bil Raza with .each other. Some inhabitants of the village also came there. The complainant alongwith PWs produced all the four accused before Muhammad Rashid A.S.I at Pul Murad Shah. Muhammad Rashid A.S.I after recording complaint Ex.PA and sending the same to Police Station for formal registration of the case, conducted the necessary investigation and prepared site-plan without scale Ex.P1 without five marginal notes.
3. The case was duly investigated: the accused were arrested and statements of the PWs were recorded under Section 161, Cr.P.C. After completion of investigation, challan was submitted in the Court against the accused to face trial. The learned trial Court framed charge against the accused on 2.3.2007 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. After recording of evidence, the learned trial Court recorded statements of the accused under Section 342, Cr.P.C. wherein all the four accused again pleaded not guilty. On completion of the trial, the learned trial Court vide judgment dated 18.07.2007 though acquitted all the accused under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 yet finding them guilty of offence under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 sentenced them as aforesaid. Further directed that the sentences shall run concurrently.
All the accused would also be entitled to the benefit of Section 382-B, Cr.P.C.
5. During the pendency of these appeals, sentences of all the four appellants were suspended vide orders of different dates. Further vide order dated 26.07.2012, this Court also dispensed with the appearance of both the female appellants namely Mst. Shazia and Mst. Naureen form their personal appearance.
6. It is to be mentioned here that as Falak Sher and Mukhtar Ahmad appellants absented and did not appear in the Court, this Court, therefore, issued non-bailable warrants of arrest and the DPO concerned, was directed to execute the non-bailable warrants against these persons and produce them before this Court, Today Mukhtar Ahmad one of the appellants has been produced by the Police whereas, about Falak Sher, it was reported that despite hectic efforts he could not be arrested. However, in view of the proposed judgment of acquittal, no further order is passed for the execution of non-bailable warrants of arrest against Falak Sher.
7. The most surprising aspect of the case is that the learned trial Court after acquitting all the appellants under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, still found them guilty of preparation for committing offence of Zina and brought the case within Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 by holding that as at the relevant time, all the four accused were found naked and remained very close to each other. therefore, they could be held guilty of making effort to commit Zina bil Raza, and thus were liable to be punished under Section 18 of the said Ordinance. However, despite going through the Section 18 of the said Ordinance, several times this Court has failed to convince itself that the finding of the learned trial Court was based on lawful assumption. Even the fact of making efforts to commit Zina bil Raza is not established by the evidence, though PW-1 namely Mujahid Abbas also the complainant in his statement tried to make out the case but he is not supported by the two persons named by him in his evidence namely Fayyaz Hussain and Mukhtar Ahmad who appeared before the trial Court as PW-2 and PW-3 respectively. So far as the evidence of PW2 is concerned, he turned hostile and was cross-examined by the prosecutor himself but nothing could be extracted from his statement who in his examination-in-chief in express terms stated: "I had not seen the accused committing Zina with each other. I had not caught hold of accused because I had gone to bring the inhabitants of village. When I reached at the spot, Mujahid and other persons had already handed over the accused to the Police which was present at the distance of 200 yards from the place of occurrence."
Similar is the statement of PW-3 Fayyaz Hussain who has given a story different from one stated by PW-1 complainant. It is further astonishing to note as to how these persons entered the disputed house because according to the complainant PW-1, he saw the male appellants scaling over the wall of the house of Sardar Muhammad father of one of the female accused. Further Sardar Muhammad being the owner of the house never complained against the male accused for committing trespass of his property without his consent, so as to attract the definition of criminal trespass within the meaning of Section 441, PPC. Mere allegation of entering into the house of Sardar Muhammad by the male accused without the complaint of Sardar Muhammad neither constitutes criminal trespass nor even attract the provision of Section 451, PPC. Learned Counsel for the appellant namely Mr. Ijaz Qutrab, Advocate by placing reliance on the judgment of the Lahore High Court in case of "Riaz Vs. SHO Police Station Jhang City and two others" reported as PLD 1998 Lahore 35, vehemently argued and rightly so that no one had an authority to enter the house of another person by violating the right of privacy as guaranteed by Article 14 of the Constitution of the Islamic Republic of Pakistan, 1973. Learned Counsel has also placed reliance on the judgment of this Court in the case of Mst. Shehnaz alias Asma alias Rani and another Vs. the State reported as 2010 P.Crl. LJ 231. Lastly it may not be out of place to mention here that Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 is an enabling provision and if a person was found guilty of attempting to commit an offence punishable under the Ordinance, he may be punished with imprisonment for a term which may extend to one half of the longer term provided for the offence but the question is whether any offence under the said Ordinance was in fact committed for attracting the provisions of Section 18 of the Ordinance ibid which is the mandatory requirement of law but in the instant case, admittedly all the appellants were not found guilty of the charge under Section 10(2) of the said Ordinance and they were acquitted by the learned trial Court, therefore, to say that they were guilty of making efforts to commit Zina-bil-Raza, were neither factually correct nor was the true interpretation of law, especially when the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 was silent about making efforts to commit Zina- bil-Raza. Had the appellants been charged for committing offence of Zina-bil-Jabr, they could be held so guilty under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979. Similarly it is also to be noted that the learned trial Court found the appellants guilty of Section 451, PPC without any charge nor any allegation to this effect by the owner of the house. It was also again violative of the mandatory provisions of Section 232, Cr.P.C., under which if any person convicted of any offence is found to be misled in his defence by the absence of any charge or by an error in the charge, the Court may direct a new trial to be held after framing the fresh charge but if the Court is of the opinion that no valid charge could be preferred against the accused in respect of the facts proved it would quash the conviction. In the present case, also the Court finds that there was even no remote possibility of charging the appellants for commission of offence of criminal trespass, therefore, conviction of the appellants by the learned trial Court under Section 451, PPC in the absence of a formal charge, was not only a gross illegality but also rendered the fining as without jurisdiction.
7. The result of the above discussion is that both the two appeals bearing Crl. Appeal No, 156/L of 2007 filed by appellants Mst. Shazia and Mst. Naureen and Crl. Appeal No, 166/L of 2007 filed by appellants Falak Sher and Mukhtar Ahmad are allowed. The convictions of and sentences of the appellants are set-aside and all the appellants are acquitted accordingly. Since Falak Sher absconding accused also deserves acquittal in the light of the above noted facts and circumstances, therefore, no further order with regard to execution of non-bailable warrants of arrest is required and he be also considered as acquitted. Mukhtar Ahmad was produced by the Police under arrest. He be sent to jail and on receipt of order of this Court, he be released forthwith if not required in any other case. The appellants are also discharged from the liability of bail bonds.
8. Above are the reasons for my short order of even date recorded separately.