' MUHAMMAD JEHANGIR ARSHAD, J.---As both these appeals i.e. Criminal Appeal No.44/L of 2010 filed by the appellant Muhammad Azam son of Sadiq and Criminal Appeal No.46/L of 2010 filed by the appellant Mst. Hasina daughter of Ghulam Nabbi have been filed against a single judgment dated 24-3-2010 passed by Malik Shabbir Ahmad, Additional Sessions Judge, Jatoi, District, Muzaffargarh in case F.I.R. No.109 of 2006, dated 24-3-2006, under section 16/10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 registered with Police Station Jatoi, Mazaffargarh under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, therefore, I propose to decide these appeals through this single judgment.
2. Both the appellants were tried in the above noted criminal case and after completion of trial, the learned Additional Sessions Judge, Jatoi, District Mazaffargarh through the impugned judgment dated 24-3-2010 convicted and sentenced both the appellants as under:-- ' Criminal. Appeal Under section 10(2) of No.44/L of 2010 the Offence of Zina Muhammad Azam (Enforcement of son of Sadiq v. The Hudood) Ordinance VII State of 1979. Five years' R.I. Each with fine of Rs.5,000 or in default of payment of fine to further undergo one month S.I. Each.
' Criminal Appeal Under section 10 (2) of No.46/L of 2010 the Offence of Zina Mst. Hasina (Enforcement of daughter of Ghulam Hudood) Ordinance VII Nabbi Versus. The of 1979. Five years'
State R.I. Each with fine of Rs.5,000 or in default of payment of fine to further undergo one month S.I. Each.
' Benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
2. Neither the facts of the case nor the evidence ploduced before the learned trial Court is being reproduced to avoid repetition as the same are fully mentioned in the impugned judgment.
However, the same would be discussed, examined and assessed in the subsequent paras.
3. Learned counsel for both the appellants argued that the learned trial Court convicted the appellants under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 without any evidence on the record. According to learned counsel for the appellants the only direct evidence on this point is that of the statement of P.W.5 Ghulam Mujtaba, S.-I. Who in this examination-in-chief stated "on 5-4-2006 I raided at the house of Muhammad Azam accused alongwith witnesses. Muhammad Azam accused was committing zina with Mst. Hasina Bibi": But, according to learned counsel the statement of P.W.5 Ghulam Mujtaba, S.-I. Could not be considered as an independent statement of eye-witness for the reasons firstly, the said witness raided the house of the appellant Muhammad Azam in violation of section 165, Cr.P.C. And second being I.O. He could not be presumed to have made the statement as an independent witness.
Learned counsel for the appellants further argued that no other independent witness was produced by the prosecution with regard to the commission of offence of zina by both the appellants nor any other witness has corroborated the statement of P.W.5 Ghulam Mujtaba, S.-I.
According to learned counsel, even the P.W.2 Gul Muhammad complainant and P.W.3 Muhammad Sharif (Eye-witness) have only said that both the appellants/accused had developed illicit relations but none of them stated that they had seen both the accused/ appellants committing zina.. Learned counsel further argued that holding the appellant guilty of the charge of commission of zina merely on the basis of hearsay evidence of P.W.2 Gul Muhammad complainant and P. W.3 Muhammad Sharif (Eye-witness) was neither warranted nor be considered as lawful conviction, therefore, both these appeals merit acceptance.
4. On the other hand, learned DPP has opposed this appeal by arguing that as the commission of offence of zina-bil-raza between both the appellants is fully established by the statement of P.W.5 Ghulam Mujtaba, S.I., therefore, this appeal has no merits and the same be dismissed.
5. From the perusal of F.I.R., the only offence against both the appellants/accused was made out under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, but the learned trial Court acquitted both the accused/appellants under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, rather in the opinion of the learned trial Court charge under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 was wrongly framed. As the offence under section 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 was not established at all, therefore, the learned trial Court rightly acquitted both the appellants/accused under section 16 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 through the impugned judgment.
6. However, the findings of the learned trial Court convicting both the accused/appellants under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 need deeper consideration and appreciation of evidence. The first question requiring determination is the competence as well as credibility of P.W.5 Ghulam Mujtaba, S.I. To appear as witness and further as to whether his statement "he saw both the accused/appellants committing zina" is credit worthy or not, to determine the above noted question his statements needs to be perused and appreciated in its entirety. According to his statement he raided the house of Muhammad Azam appellant/accused, but no material has placed on record showing in writing the grounds as required under section 165, Cr.P.C. His very act of entering the house of Muhammad Azam, appellant/accused for search warrants was not only in breach of law viz section 165, Cr.P.C, but also violative of Article 14 of the Constitution of the Islamic Republic of Pakistan, 1979; guaranteeing fundamental right of privacy of house. In the case of Riaz v. Station House Officer, Police Station, Mang City and 2 other PLD 1998 Lahore 35, the learned Single Judge of the Lahore High Court, Lahore after detailed discussion regarding applicable of section 165, Cr.P.C. With reference to section 10/13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 laid down the following principles:--
(i) Section 165 Cr.P.C. Does not cover raiding of a house to surprise any person engaged in a sex.
(ii) Sections 10/13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 were enacted to implement the Islamic provisions/principles but does not provide for an intrusion into any one's house only to find out the commission of offence of zina, as such an act is prohibited by the Holy Qur'an.
7. P.W.5 Ghulam Mujtaba, S.O. Did not utter even a single word in his statement that before raiding the house of Muhammad Azam appellant, he fulfilled the requirement of section 165, Cr.P.C. Or entered the house with lawful authority, therefore, this Court cannot consider/ appreciate the act/conduct of P.W.5 Ghulam Mujtaba, S.I. Whereby he entered/ raided the house of Muhammad Azam, accused/appellant to surprise both the appellants/accused allegedly engaged in sex. It is further astonishing to note that according to report prepared by the police under section 173, Cr.P.C., when the raid was conducted both the appellants/accused were found committing zina- bil-raza in the lawn of the housed and Muhammad Azam, accused/appellant ran away from the spot, when the police allegedly entered the house of Muhammad Azam appellant/accused by scaling over the wall whereas Mst. Hasina Bibi appellant/accuse was arrested on the spot. If Muhammad Azam, appellant/ accused was .In fact present in his house at that time, he could not run away from the scene by scaling over the wall in the presence of several persons including Muhammad Sharif and Rajab Hussain and also the police officials. Further, if the witnesses mentioned in the report were in fact present at the time of raid that should have also appeared in the Court but out of them Rajab Hussain was given up whereas Muhammad Sharif P.W.3, in his statement neither said anything about his presence at the time of raid or seen the accused/ appellants committing zina-bil-raza. In the absence of any direct independent and corroborative evidence with regard to commission of zina-bil-rza by the appellant/accused, the appellants could not be convicted on the basis of mere surmises, therefore, the learned trial Court acted illegality and with material irregularity by placing reliance on the sole statement of P.W.5 Ghulam Mujtaba, S.I., rather in the light of above noted facts and circumstances his evidence was highly improbable. Further his evidence also become highly doubtful, because after raiding the house of Muhammad Azam, appellant/accused in the performance of his duty as I.O. The said witnesses rendered himself as an interesting person on the question of commission of offence of zinabil-raza by both the appellants. It has generally been observed by the Court that in most of the cases I.O.
Becomes prosecutor as well as witnesses, which is against the principles of natural justice. As noted above, neither the complainant namely Gul Muhammad P.W.2 said anything that both the appellant/accused committing zina-bil-raza in his presence, nor P.W.3 Muhammad Sharif said anything to this effect in his statement. Rather they only said in their statement that both the accused developed illicit relations, therefore, convicting the appellants/accused under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 merely on the basis of sole uncorroborated statement of P.W.5 Ghulam Mujtaba, S.I. Is highly un-safe in the proper administration of criminal justice.
7A. In view of the above discussion, the prosecution has filed to bring whom the charge of commission of offence of zinabil-raza by both the appellants within the meaning of section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 beyond any shadow of doubt, therefore, this court has no option but to acquit both the appellants/accused after set asiding their conviction recorded by the learned trial Court through the impugned judgment.
8. Both these appeals are accordingly allowed, the judgment of the learned trial Court is set aside and the appellants are acquitted of the charge. Appellants are present in Court, their bail bonds are cancelled.