Mohammad Zahoor and Mst. Shahnaz both have been found guilty by Sub-Divisional Magistrate Abbottabad under section 18 read with section 10, subsection (2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for attempting to commit an offence of Zina liable to Tazeer by order dated 29-1-1980 and both of them awarded sentence of five years' R.
1. While Mohammad Zahoor accused appellant was further awarded ten stripes. Both the convicts have filed two separate appeals which will be disposed of by this consolidated judgment as these arise out a single trial and order.
2. The factual resume of the prosecution case brought out at the trial is that Muhammad Zahoor a tailor by profession had a shop in Havelian Bazar which was visited by Mst. Shahnaz accused on 1- 3-1979 the alleged day of occurrence at 10-10 p.m. Abdul Qayum, F. C. No. 930, who was present near about locked the shop from outside and informed A. S. 1. Pervez lqbal who was on patrol duty in Havelian Bazar, A. S. I. Pervez Iqbal informed Muhammad Israr, S. H. O. Who reached the shop of the accused unlocked it and arrested both the accused from inside the shop in the pre--sence of Muhammad Salim and Muhammad Nasim shopkeeper. A bedsheet and a piece of cloth suspected to be stained with semen were taken into possession vide memo. Exh. P. W. 6/1. Both the accused were got medically examined from different doctors who took urethral swabs and pubic hair of Muhammad Zahoor accused and these were sent to the Chemical Examiner. Vaginal swabs of Mst.
Shahnaz were also taken and sent to the Chemical Examiner. The result of vaginal swabs has not been placed on the file while the result of urethral swabs and pubic hairs of Muhammad Zahoor (Exh. P. 2) is in the negative. The bedsheet was also found not stained with semen. Only a piece of cloth was found to be stained with semen.
3. It is in the prosecution evidence that Muhammad Zahoor accused-- appellant is a tailor by profession who used to work in his shop up til late hours in the right ; that he had kept a 'Cot' in the shop for the sitting of his customers ; that when the police opened the shop, Zahoor accused- appellant informed them that Mst. Shahnaz was a customer who had come to get her clothes stitched and that both were properly dressed when the shop was opened.
4. The learned trial Magistrate in view of the medical evidence and the report of the Chemical Examiner arrived at the finding that the prose--cution has failed to prove that the accused had committed sexual intercourse. However, in view of the fact the Mst. Shahnaz had visited the shop of the accused at 10-10 p.m. And after entering the shop, the door was closed and chained from inside, it would raise a strong presumption that she had gone there with no other purpose but to commit Zina. The argument is be--yond comprehension. If Zahoor accused-appellant is a tailor and admittedly worked during nocturnal hours as was the case with the other tailors, the visits of a customer whether a male or female, to the shop at night could not be considered objectionable.
Except that they were both found inside the shop there is nothing on the record to suggest that they were in compro--mising posture. The elementary principle of criminal law, that in all cases t the burden of proof lies upon the prosecution to bring the guilt home to the accused, does not admit of any exception. Generally in criminal cases, unless otherwise directed by Statute, the presumption of innocence casts on the prosecutor the burden of proving every ingredient of the offence, even though nagative averments be involved therein ; and the difficulty of proving the necessary ingredients of the offence is no ground for excepting the pro--secutor from that duty.
The accused is entitled to keep mum casting the entire burden on the prosecution to prove his guilt, and that by legally admissible mode of proof. In criminal cases the onus of proving the general issue never shifts, and it lies upon the prosecution to prove, by relevant evidence and beyond reasonable doubt, the guilt of the accused. An accused person must always be presumed to be innocent until he has been found B to be guilty. Therefore, the learned trial Magistrate was not legally justi--fied to hold that the mere presence of the two accused raise a strong presump--tion that they were there to commit Zina.
5. Another aspect of the case which has escaped the notice of the learned --trial Magistrate is that there are five essentials to prove an offence of crimi--nal attempt :--. (i) the existence of an intention on the part of the accused to commit a particular offence ;
(ii) some step taken towards it after completion of preparation ;
(iii) the step must be apparently, through not necessarily, adapted to the ' purpose designed;
(iv) it must come dangerously near to success ;
(v) it must fall short of completion of the ultimate design.
None of these has been established in this case. The visit of Mst. Shahnaz to the shop could have been for innocent purpose of getting her J clothes tailored. To establish an offence of attempt under section 18 of the Hudood Ordinance, the prosecution has to prove more than a simple case of attempt. It has to prove that in such attempt an act towards the commis--sion of the offence was performed. This is very much evident from the contents of section 18 which reads :- "Punishment for attempting to commit an offence.-Whoever attempts to commit an offence punishable under this Ordinance with imprison--ment or whipping, or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, ' shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with whipping not exceeding thirty stripes, or with such fine as is provided for the offence, or with any two of, or all, the punishments."
In the instant case as has been observed herebefore the prosecution has miserably failed to prove even a case of simple attempt. Both the accused-- appellants were found in the shop, which was open when Mst. Shahnaz first visited it. At the time of entry by the police she was occupying the `Charpai' meant for customers. Both were properly dressed and the Chemical Exami--ner's report indicates that they had not indulged in sexual intercourse.
6. For what has been discussed herebefore I am of the view that the prosecution has failed to prove its case against both the accused-appellants beyond reasonable doubt, the benefit of which has to go to them. Therefore, while accepting the appeal, I set aside their conviction and sentences and acquite them of the charge. Both the accused-appellants are on bail and they shall stand discharged of the obligation of bail bonds.