All the above three appeals arise out of common judgment dated 24th March, 1980 of the learned VII th Additional Sessions Judge, Karachi, by which appellant Mohammad Hussain has been convicted under section 18 of the Offence of Zina (Enforcement of Hudood Ordinance; 1979 and sentenced to undergo R. I. For 3 years and to pay a fine of RS. I.000 and in default of payment of fine, to undergo further R. I. For 3 months, whereas appellant Mst. Fehmida has been convicted under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 2 years' R. I. And fine of Rs. 1,000 or in default of payment of fine to undergo further R. I. For 3 months, have preferred these appeals, on the following facts and grounds :-
2. Briefly the facts of the case of the prosecution, as disclosed during the trial in the evidence of P.
W. 4 Imtiaz Ahmed Jafry, Police Inspector, are that on the night between 21 August, 1979 and 22nd August, 1979 he was on patrol duty on Napier Road, Karachi, being the Incharge of the Police Station Napier. Alongwith him was A. S. I. Adalat, P. W. 1 and at about 12-50 during the night, when he reached near Roity Cinema on Japani Road, be received spy information that one customer in the house of Mst. Fahmida in Qamru-Dela had gone for the purpose of committing zina. He called two witnesses, namely, Ashiqeen and Shakir and also called two Police Constables, namely, Mohammad Ashraf and Mohammad Ali. The Police party then went on the first floor to the house of appellant Mst. Fahmida, where they found a curtain on the room. The Police party and the witnesses found the two appellants inside the room lying on a cot, who were kissing and embracing each other. The hand of male appellant was on the front of shalwar of female appellant and they were about to commit zina with each other. Showing this fact to the witnesses, the Police Officer arrested the two appellants and brought them to the Police Station and on behalf of thest State, he registered a case under the above Ordinance vide F. I. R. Exh.
11. After recording the statements of witnesses, he submitted challan against both the appellants.
3. At the trial the prosecution in support of its case has examined Adalat Khan A. S. I., P. W. 1, Constable Mohammad Ashraf P. W. 2, Mohammad Ashiq P. W. 3 and Imtiaz Ahmed Jaffery Police Inspector P. W.
4. The other witness Mohammad Shakir was reported untraced, as stated by proeess-server Ishtiaq Baig.
4. Both the appellants in their statements under section 342, Cr. P. C. Have denied the allegations of the prosecution and had taken the plea, that they have been falsely involved in the case. Appellant Mst. Fehmida has stated, that she is a widow and earns her livelihood by doing the domestic work and that the co-appellant Mohammad Hussain-calls her as his mother. Appellant Mohammad Hussain has stated, that he was arrested at the instance of Constable Mohammad Ashraf, whom he had refused to train as driver.
5. Appellant Mst. Fahmida has not examined evidence in her defence, but appellant Mohammad Hussain produced two defence witnesses, namely, Jawer and Mohammad Anwar. The learned trial Court on the basis of above evidence convicted both the appellants as hereinabove mentioned vide Judgment dated 24th March, 1980.
6. The appellants being aggrieved by the impugned Judgment dated 24th March, 1980 preferred two jail appeals No. 8-9/80 and subsequently appellant Mohammad Hussain, also filed Criminal Appeal No. 12/80 through counsel, on the grounds mentioned in the memo of these appeals. Since all these appeals arise out of common judgment, I propose to dispose off all these appeals by this common judgment.
7. Learned counsel for the appellants in support of their contentions submitted, that prosecution case rests on the evidence of eke-witnesses namely, P. W. 1 Adalat Khan, P. W. 2 Mohammad Ashraf, P. W. 3 Mohammad Ashiq and P. W. 4 Imitaz Ahmad Jafery, out of these 4 witnessess, except P. W. 3 Mohammad Ashiq, the rest of 3 witnesses are Police personnels. Learned counsel further pointed out, that alleged inde--pendent witness P. W. 3 Mohammad Ashiq is not the resident of the locality and there is no plausible explanation for his being available at that time of the night in the locality, to become a mashir of the incident. Learned counsel further pointed out, that this P. W. In his cross- exami--nation has admitted, that while coming from his Karkhana from Sharafa Bazar it is not at all necessary for him to pass through the wardat, for going to his house and as such his presence in the locality at that time of the night is doubtful. Learned counsel further pointed out, that the prosecution witnesses have tried to improve the version given in the F. I. R. When they appeared before the learned trial Court and in this connection, learned counsel for the appellants pointed out, that there is nothing mentioned in F. I. R. Except, that the appellants were found kissing each other, but the prosecution witnesses in court have tried to state that they were either half naked or the appellant Mohammad Hussain had a hand on the shalwar of appellant Mst. Fehmida, so as to bring offence in question within the scope of attempt to commit zina. Learned counsel further pointed out, that according to the prosecution witnesses the light was on in the house in question and the door was open, which is impossible to believe, if the appellants were really caught as alleged by the prosecution. Learned counsel further submitted, that it is an admitted position, that there are people living in the same building, but none of them were summoned as mashir by the Police, but P. W. Mohammad Ashiq, who is not the resident of the locality was made a mashir by Police. Learned counsel further pointed out, that there is nothing in the F. I. R. To suggest, that both the appellants were arrested on the spot nor any mashir of their arrests on the spot was either prepared and/or produced, before the learned trial Court. In view of this learned counsel submitted that the statement of appellant Mohammad Hussain under section 342, Cr. P.C., that he was called from his house to Police Thana cannot be ignored. Learned counsel further pointed out, that appellant Mohammad Hussain in his statement under section 342 Cr. P. C. Has stated, that he has an-enmity with P. W. 2 Mohammad Ashraf, whom he has refused to teach driving and consquently, he with the help of P. W. 1 and P. W. 4 who are superior officers, has falsely involved him in this case.
Keeping in view the above submissions made by the learned counsel for the appellants learned counsel submitted, that prosecution has failed to establish case against the appellants under section 18 of the zina Ordinance and/or have completely failed to prove the said case against the appellants, beyond reasonable doubt, and as such the appellants are entitled to acquittal on these basis.
8. Learned counsel appearing for the State very fairly at the out set submitted, that he does not support the impugned judgment, as in his opinion, prosecution has failed to establish the case against the appellants beyond reasonable doubt and the independent P. W. 3, Ashiq is not a person of locality and is a chance witness and the remaining 3 witnesses belonged to the Police force and in the absence of the mashir--namas of the arrest of the appellants on the spot, no reliance can be placed on the statements of these prosecution witnesses.
9. I have carefully considered the above submissions made by the learned counsel for the parties and have gone through the statements of the prosecution witnesses as well as impugned judgment. I find, that not only 3 of the alleged eye-witnesses belong to Police force, but the independent P. W. 3, Mohammad Ashiq is not the resident of the locality and his presence at that time of the night, in the locality is doubtful. Beside this I find that the Police did not prepare any mashirnama for the arrest of both the appellants on that spot nor anything is mentioned in the F. I.
R., that they were arreste4 on the spot. Beside this, there are material contradictions in the statements of prosecution witnesses interest, regarding the position in which the appellants were found in the said room. The prosecution case that the appellants had kept the light on, as well as the door opened is something which cannot be accepted, if the appellants were really engaged in the act which is alleged against them.
10. Keeping in view all above facts, I am of the opinion that prosecution has failed to establish its case against both the appellants beyond reasonable doubt and, therefore. I allow the above three appeal and set aside the convictions and sentences awarded to the appellants and acquit them, by giving benefit of doubt and discharge bail bonds executed by the appellants.